[Federal Register Volume 81, Number 232 (Friday, December 2, 2016)]
[Rules and Regulations]
[Pages 87130-87243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27737]



[[Page 87129]]

Vol. 81

Friday,

No. 232

December 2, 2016

Part II





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. 81 , No. 232 / Friday, December 2, 2016 / 
Rules and Regulations  

[[Page 87130]]


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DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 38

RIN 1291-AA36


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: This final rule revises the U.S. Department of Labor 
(Department) regulations implementing the nondiscrimination and equal 
opportunity provisions of Section 188 of the Workforce Innovation and 
Opportunity Act (WIOA). Signed by President Obama on July 22, 2014, 
WIOA superseded the Workforce Investment Act of 1998 (WIA) as the 
Department's primary mechanism for providing financial assistance for a 
comprehensive system of job training and placement services for adults 
and eligible youth. Section 188 of WIOA prohibits the exclusion of an 
individual from participation in, denial of the benefits of, 
discrimination in, 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, or 
political affiliation or belief, or, for beneficiaries, applicants, and 
participants only, on the basis of citizenship status, or participation 
in a program or activity that receives financial assistance under Title 
I of WIOA. This final rule updates Department regulations consistent 
with current law and addresses its application to current workforce 
development and workplace practices and issues.

DATES: Effective Date: These regulations are effective December 2, 
2016.

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

Regulatory History

    WIOA contains the identical provisions of Section 188 as appeared 
in WIA, and these WIOA provisions took effect on July 1, 2015. To 
ensure no regulatory gap while this rule was prepared, the Department's 
Civil Rights Center (CRC) issued a final rule in July 2015 (``2015 
rule''), codified at 29 CFR part 38, which applies until this rule 
takes effect. The 2015 rule retained the provisions in 29 CFR part 37 
(``1999 rule'') but simply substituted all references to WIA with WIOA 
to reflect the proper statutory authority. This final rule revises the 
2015 rule and generally carries over the policies and procedures found 
in the 1999 and 2015 rules, which implemented the equal opportunity and 
nondiscrimination provisions of WIA and WIOA, respectively. Like the 
1999 and 2015 rules, this final rule is organized into subparts A 
through E.

Purpose of the Regulatory Action

    CRC enforces Section 188 of WIOA, which prohibits exclusion of an 
individual from participation in, denial of the benefits of, 
discrimination in, 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, or 
political affiliation or belief, or, for beneficiaries, applicants, and 
participants only, on the basis of 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 (Title VI) (prohibiting 
discrimination based on race, color, or national origin in programs and 
activities receiving federal financial assistance),\1\ Title IX of the 
Education Amendments of 1972 (Title IX) (prohibiting discrimination 
based on sex in education and training programs receiving federal 
financial assistance),\2\ the Age Discrimination Act of 1975 
(prohibiting discrimination based on age),\3\ and Section 504 of the 
Rehabilitation Act (Section 504) (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,\8\ which are 
enforced by the Equal Employment Opportunity Commission (EEOC); 
Executive Order 11246 \9\ and Section 503 of the Rehabilitation 
Act,\10\ which are enforced by the Department's Office of Federal 
Contract Compliance Programs (OFCCP); Title VI of the Civil Rights Act, 
the Age Discrimination Act of 1975, and Section 504 of the 
Rehabilitation Act, which are enforced by each federal funding agency; 
and 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, 122 Stat. 3553 
(2008).
    \8\ 29 U.S.C. 791.
    \9\ Executive Order 11246, 30 FR 12319, Sept. 24, 1965, as 
amended by Executive Order 11375, 32 FR 14303, Oct. 17, 1967; 
Executive Order 12086, 43 FR 46501, Oct. 10, 1978; Executive Order 
13279, 67 FR 77141, Dec. 12, 2002; Executive Order 13665, 79 FR 
20749, Apr. 8, 2014; and Executive Order 13672, 79 FR 42971, July 
21, 2014.
    \10\ 29 U.S.C. 793.
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    CRC issued a notice of proposed rulemaking (NPRM) on January 26, 
2016, to implement the nondiscrimination and equal opportunity 
provisions of WIOA, informed by CRC's experience under the 1999 rule 
implementing WIA. CRC maintains regular contact with the regulated 
community, and this contact resulted in some of the changes to the 2015 
rule that were proposed in the NPRM. During the 60-day public comment 
period, CRC received 360 comments \11\ on the proposed rule. Comments 
came from a wide variety of stakeholders, including State and local 
agencies; civil rights and advocacy groups, such as language access 
organizations, disability rights organizations, and organizations 
serving lesbian, gay, bisexual, and transgender (LGBT) individuals; 
religious organizations; and labor organizations. After a full review 
of the comments, CRC adopts this final rule incorporating many of the 
provisions proposed in the NPRM, with some modifications that are 
discussed in the Section-by-Section analysis below.
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    \11\ This includes one comment that was withdrawn and reissued 
without personally identifiable information and one comment 
documenting contact with an outside party during the comment period.
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    This rule sets forth the WIOA Section 188 nondiscrimination and 
equal opportunity requirements and obligations for ``recipients'' as 
that term is defined in Sec.  38.4(zz). These requirements and 
obligations arise in

[[Page 87131]]

connection with programs or activities financially assisted under WIOA 
Title I as explained further below. The final rule describes the 
enforcement procedures for implementing the nondiscrimination and equal 
opportunity provisions of WIOA. 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, including standards for determining discrimination and 
enforcement procedures, as well as procedures to process 
complaints.\12\
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    \12\ 29 U.S.C. 3248(e).
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    To best understand the application of this regulation, readers are 
encouraged to review the ``applicability'' language at Sec.  38.2, the 
definition of ``financial assistance'' under Title I of WIOA at Sec.  
38.4(x) and (y), and the definition of ``recipient'' at Sec.  38.4(zz). 
Entities connected to the workforce development system may be 
recipients for purposes of Section 188 and this rule even if they do 
not receive assistance in the form of money. For example, recipients 
subject to these regulations include entities with agreements, 
arrangements, contracts, subcontracts, or other instruments for the 
provision of assistance or benefits under WIOA Title I.\13\ Thus, 
entities that are selected and/or certified as eligible training 
providers are considered to receive financial assistance for the 
purpose of this regulation and Section 188.\14\ Additionally, programs 
and activities operated by one-stop partners (both required partners 
and additional partners) also receive financial assistance for purposes 
of this regulation to the extent that these programs and activities are 
being conducted as part of the one-stop delivery system.\15\ We note, 
however, that whether an entity is an additional one-stop partner 
subject to Section 188 is based on whether that entity has signed a 
Memorandum of Understanding as an additional partner per the 
requirements of Section 121 of WIOA \16\ and not merely whether that 
entity is working with or contributing something to a WIOA Title I 
program.\17\
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    \13\ See Sec.  38.4(x)(5), (y)(5).
    \14\ Section 38.4(zz)(6) (service providers, including eligible 
training providers, are recipients); see also Sec.  38.4(ggg) 
(defining ``service provider'').
    \15\ Section 38.2(a)(2).
    \16\ See 29 U.S.C. 3151.
    \17\ Please note that this sentence is limited in scope as to 
whether an entity is a one-stop additional partner subject to this 
regulation. Even if an entity does not qualify as a one-stop 
additional partner, that entity might still be subject to the 
requirements of this regulation if it is otherwise a recipient of 
financial assistance under Title I of WIOA.
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    Since their promulgation in 1999, the regulations implementing 
Section 188 of WIA or WIOA had not undergone substantial revision. The 
2015 rule made only technical revisions to the 1999 rule, changing 
references from ``WIA'' to ``WIOA.'' Thus, the 2015 rule did not 
reflect recent developments in equal opportunity and nondiscrimination 
jurisprudence. Moreover, procedures and processes for enforcement of 
the nondiscrimination and equal opportunity provisions of Section 188 
had 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, benefits, services, or training through WIOA 
Title I-financially assisted programs and activities.
    For these reasons, this final rule revises 29 CFR part 38 to set 
forth recipients' nondiscrimination and equal opportunity obligations 
under WIOA Section 188 in accordance with existing law and policy. This 
rule updates the regulations to address current compliance issues in 
the workforce system and to reflect existing law under Title VI and 
Title VII of the Civil Rights Act of 1964, Title IX of the Education 
Amendments of 1972, the ADA, and the Rehabilitation Act as related to 
WIOA Title I-financially assisted programs and activities. This rule 
also incorporates developments and interpretations of existing law by 
the Department of Justice (DOJ), the EEOC, the Department of Education, 
and this Department's corresponding interpretations of Title VII and 
the Rehabilitation Act into the workforce development system. The final 
rule reflects current law and legal principles applicable to a 
recipient's obligation to refrain from discrimination and to ensure 
equal opportunity.

Major Revisions

    First, this final rule improves the overall readability of the 2015 
rule through revisions, limited reorganization of sections, and more 
explicit descriptions of recipient obligations. The final rule revises 
the current question-and-answer format in the title of each section to 
make it more straightforward and to more closely mirror other 
nondiscrimination and equal opportunity regulations issued by the 
Department. The plain language of the regulations is retained for ease 
of comprehension and application.
    Second, this rule updates the nondiscrimination and equal 
opportunity provisions of the 2015 rule to align them with current law 
and legal principles. As discussed above, in enforcing the 
nondiscrimination obligations of recipients set forth in this part, CRC 
follows the case law principles developed under, among other statutes, 
Title VI and Title VII of the Civil Rights Act of 1964, Title IX of the 
Education Amendments of 1972, Section 504 of the Rehabilitation Act of 
1973, and the Americans with Disabilities Act, as amended by the ADAAA. 
Since the issuance of the WIA Section 188 regulations in 1999, the 
principles of nondiscrimination and equal opportunity law under these 
statutes have evolved significantly, and the ADA has been amended. 
Agencies enforcing these statutes have issued regulations and guidance 
impacting WIOA Title I-financially assisted programs and activities to 
reflect these legal developments.\18\ During that time, the Department 
has issued final rules under Section 503 of the Rehabilitation Act and 
Executive Order 11246.\19\
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    \18\ See U.S. Dep't of Justice, Office of the Att'y Gen., 
Amendment of Americans with Disabilities Act Title II and III 
Regulations to Implement ADA Amendments Act of 2008; Final Rule, 81 
FR 53204, Aug. 11, 2016 (revising 28 CFR parts 35 and 36) 
(hereinafter ``DOJ Final Rule to Implement ADAAA''); U.S. Equal 
Emp't Opportunity Comm'n, Regulations to Implement the Equal 
Employment Provisions of the Americans with Disabilities Act, as 
Amended; Final Rule, 76 FR 16978, Mar. 25, 2011 (29 CFR part 1630) 
(hereinafter ``EEOC Final Rule to Implement ADAAA''); see also U.S. 
Dep't of Health & Human Servs., Office for Civil Rights, 
Nondiscrimination in Health Programs and Activities; Final Rule, 81 
FR 31376, May 18, 2016 (implementing Section 1557 of the Affordable 
Care Act, which prohibits discrimination on the grounds prohibited 
by Title VI, Title IX, the Age Act, and Section 504) (hereinafter 
``HHS Nondiscrimination Final Rule'').
    \19\ U.S. Dep't of Labor, Office of Fed. Contract Compliance 
Programs, Discrimination on the Basis of Sex; Final Rule, 81 FR 
39108, June 15, 2016 (revising 41 CFR part 60-20) (hereinafter 
``OFCCP Sex Discrimination Final Rule''); U.S. Dep't of Labor, 
Office of Fed. Contract Compliance Programs, Implementation of 
Executive Order 13672 Prohibiting Discrimination Based on Sexual 
Orientation and Gender Identity by Contractors and Subcontractors; 
Final Rule, 79 FR 72985, Dec. 9, 2014 (revising 41 CFR parts 60-1, 
60-2, 60-4, and 60-50) (hereinafter ``OFCCP Executive Order 13672 
Final Rule''); U.S. Dep't of Labor, Office of Fed. Contract 
Compliance Programs, Affirmative Action and Nondiscrimination 
Obligations of Contractors and Subcontractors Regarding Individuals 
with Disabilities; Final Rule, 78 FR 58862, Sept. 24, 2013 (revising 
41 CFR part 60-741).
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    Third, this final rule improves the effectiveness of CRC's 
enforcement program to support compliance with the rule. The compliance 
review and complaint procedures sections are updated and the changes 
are intended to increase compliance through clearer descriptions of 
recipient responsibilities, more effective Equal Opportunity (``EO'') 
Officers, enhanced data collection, and consistent

[[Page 87132]]

monitoring and oversight by Governors. These changes help identify the 
scope of the nondiscrimination and equal opportunity requirements and 
obligations with more specificity and inform those who may not 
otherwise be aware of the developments in the law.

Statement of Legal Authority

Statutory Authority

    The statutory authorities for this final rule are: The Workforce 
Innovation and Opportunity Act, Public Law 113-128, 128 Stat. 1425, 
including Section 188 of such Act. Section 188 incorporates the 
prohibitions against discrimination under Title VI of the Civil Rights 
Act of 1964, as amended, Public Law 88-352, 78 Stat. 252 (42 U.S.C. 
2000d et seq.); Section 504 of the Rehabilitation Act of 1973, as 
amended, Public Law 93-112, 87 Stat. 390 (29 U.S.C. 794); the Age 
Discrimination Act of 1975, as amended, Public Law 94-135, 89 Stat. 728 
(42 U.S.C. 6101 et seq.); and Title IX of the Education Amendments of 
1972, as amended, Public Law 92-318, 86 Stat. 373 (20 U.S.C. 1681 et 
seq.).

Departmental Authorization

    Secretary's Order 04-2000 delegates authority and responsibility to 
CRC for developing, implementing, and monitoring the Department's civil 
rights enforcement program under all equal opportunity and 
nondiscrimination requirements applicable to programs and activities 
financially assisted and conducted by the Department, including Section 
188 of WIA. Section 5 of the Secretary's Order also authorizes the 
Assistant Secretary for Administration and Management, working through 
the CRC Director, to establish and formulate all policies, standards, 
and procedures for, as well as to issue rules and regulations 
governing, the enforcement of statutes applying nondiscrimination and 
equal opportunity requirements to programs and activities receiving 
financial assistance from the Department.\20\ Section 5(A)(1)(j) of the 
Order also delegates authority and assigns responsibility to CRC for 
``other similarly related laws, executive orders and statutes.'' Thus, 
this delegation also covers CRC's enforcement of Section 188 of WIOA, 
and no new delegation is necessary.
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    \20\ 65 FR 69184, Nov. 15, 2000.
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Interagency Coordination

    The DOJ, under Section 1-201 of Executive Order 12250,\21\ is 
responsible for coordinating federal enforcement of most 
nondiscrimination laws that apply to federally assisted programs and 
activities. Executive Order 12067 \22\ requires federal departments and 
agencies to consult with the EEOC about regulations involving equal 
employment opportunity. The Age Discrimination Act of 1975, as amended, 
assigns the Secretary of the U.S. Department of Health and Human 
Services (HHS) the responsibility for coordinating the federal 
enforcement effort of that Act. Accordingly, the final rule has been 
developed in coordination with the DOJ, the EEOC, and HHS. In addition, 
as appropriate, this rule has been developed in coordination with other 
federal grantmaking agencies, including the U.S. Departments of 
Education and Housing and Urban Development.
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    \21\ 45 FR 72995, Nov. 4, 1980.
    \22\ 43 FR 28967, July 5, 1978.
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I. Overview of the Final Rule

    This final rule retains the organization of 29 CFR part 38 as well 
as the majority of the provisions in part 38.
    Subpart A--General Provisions. This subpart outlines the purpose 
and application of part 38, provides definitions, outlines prohibited 
bases and forms of discrimination, and establishes CRC's enforcement 
authority and recipients' nondiscrimination obligations.
    Subpart B--Recordkeeping and Other Affirmative Obligations of 
Recipients. This subpart sets forth the affirmative obligations of 
recipients and grant applicants, including the role of EO Officers, 
notice and communication requirements, and the data and information 
collection and maintenance obligations of recipients.
    Subpart C--Governor's Responsibilities to Implement the 
Nondiscrimination and Equal Opportunity Requirements of the Workforce 
Innovation and Opportunity Act (WIOA). This subpart describes a 
Governor's responsibilities to implement the nondiscrimination and 
equal opportunity provisions of WIOA and this part, including oversight 
and monitoring of WIOA Title I-financially assisted State Programs and 
development of a Nondiscrimination Plan.
    Subpart D--Compliance Procedures. This subpart describes procedures 
for conducting compliance reviews, processing complaints, issuing 
determinations, and handling breaches of conciliation agreements.
    Subpart E--Federal Procedures for Effecting Compliance. This 
subpart describes the procedures for effecting compliance, including 
actions CRC is authorized to take upon finding noncompliance when 
voluntary compliance cannot be achieved, the rights of parties upon 
such a finding, and hearing procedures, sanctions, and post-termination 
procedures.

Reasons for Revisions Generally

    The final rule incorporates current jurisprudence under Title VII 
and other employment nondiscrimination laws, as well as EEOC guidance 
interpreting those nondiscrimination obligations. We rely on this 
guidance in the employment context because WIOA Section 188 also 
applies to employment in the administration of, or in connection with, 
Title I-financially assisted programs and activities. Pursuant to 
Executive Order 12067, the EEOC is the lead federal agency responsible 
for defining the nature of employment discrimination on the basis of 
race, color, religion, sex, national origin, age, or disability under 
all federal statutes, executive orders, regulations, and policies that 
require equal employment opportunity. CRC thus generally defers to the 
EEOC's interpretations of Title VII and other relevant employment laws 
as they apply to job applicants to and employees of recipients.
    Pursuant to Executive Order 12250 and Title VI, the DOJ is the lead 
federal agency responsible for defining the nature and scope of the 
nondiscrimination prohibitions based on, among other grounds, race, 
color, and national origin in programs and activities receiving federal 
financial assistance. Thus, CRC defers to the DOJ's interpretations of 
Title VI regarding discrimination based on race, color, and national 
origin in programs and activities receiving federal financial 
assistance. Further, pursuant to ADA Title II, the DOJ is the lead 
federal agency responsible for defining the parameters of the 
nondiscrimination and equal opportunity provisions of Title II of the 
ADA regarding State and local government entities.

Developments in National Origin and Language Access Discrimination 
Jurisprudence

    Consistent with Title VI case law and the DOJ's 2002 guidance on 
ensuring equal opportunity and nondiscrimination for individuals who 
are limited English proficient (LEP),\23\ this final rule provides that 
recipients must not discriminate on the basis of national origin 
against individuals who are LEP.
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    \23\ U.S. Dep't of Justice, Guidance to Federal Financial 
Assistance Recipients Regarding Title VI Prohibition Against 
National Origin Discrimination Affecting Limited English Proficient 
Persons, 67 FR 41455, June 18, 2002 (hereinafter ``DOJ 2002 LEP 
Guidance'').

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    Title VI provides that ``[n]o person in the United States shall, on 
the ground of race, color, or national origin, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any program or activity receiving Federal 
financial assistance.'' \24\ Interpreting Title VI, the Supreme Court 
in Lau v. Nichols held that excluding LEP children from effective 
participation in an educational program because of their inability to 
speak and understand English constitutes national origin 
discrimination.\25\ Courts have consistently found that a recipient's 
failure to provide meaningful access to LEP individuals violates Title 
VI's prohibition of national origin discrimination.\26\ Consequently, 
this final rule provides that the definition of national origin 
discrimination includes discrimination based on limited English 
proficiency. The final rule sets forth recipients' compliance 
obligations for ensuring that LEP individuals have meaningful access to 
WIOA programs and services.
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    \24\ 42 U.S.C. 2000d.
    \25\ 414 U.S. 563, 568-69 (1974).
    \26\ See, e.g., Colwell v. Dep't of Health & Human Servs., 558 
F.3d 1112, 1116-17 (9th Cir. 2009) (noting that Lau concluded 
``discrimination against LEP individuals was discrimination based on 
national origin in violation of Title VI''); United States v. 
Maricopa Cnty., 915 F. Supp. 2d 1073, 1079-80 (D. Ariz. 2012) 
(discussing Lau); Faith Action for Cmty. Equity v. Hawaii, No. 13-
00450 SOM/RLP, 2014 WL 1691622, at *14 (D. Haw. Apr. 28, 2014) 
(Title VI intent claim was properly alleged by LEP plaintiffs when 
it was based on the ``foreseeable disparate impact of the English-
only policy,'' allegedly pretextual justifications for the policy, 
and potentially derogatory comments by a State agency).
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    The final rule is also consistent with CRC guidance issued in 2003, 
advising all recipients \27\ of federal financial assistance from the 
Department of Labor of the Title VI prohibition against national origin 
discrimination affecting LEP individuals.\28\ This 2003 U.S. Department 
of Labor (DOL) LEP Guidance was issued pursuant to Executive Order 
13166, which directed each federal agency that extends assistance 
subject to the requirements of Title VI to publish guidance for its 
respective recipients clarifying that obligation.\29\ Executive Order 
13166 further directs that all such guidance documents be consistent 
with the compliance standards and framework detailed in LEP Guidance 
issued by the DOJ.\30\ The LEP provisions of this final rule are drawn 
from Title VI and its implementing regulations, and thus are consistent 
with, the DOJ 2000 and 2002 LEP Guidance.
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    \27\ In this instance, the term ``recipient'' is broader than 
the definition at Sec.  38.4(zz). See notes 13-17 and accompanying 
text for an explanation of the term ``recipient'' with respect to 
WIOA Title I programs and activities.
    \28\ U.S. Dep't of Labor, Civil Rights Center, Enforcement of 
Title VI of the Civil Rights Act of 1964; Policy Guidance to Federal 
Financial Assistance Recipients Regarding the Title VI Prohibition 
Against National Origin Discrimination Affecting Limited English 
Proficient Persons, 68 FR 32290, May 29, 2003 (hereinafter ``DOL LEP 
Guidance'').
    \29\ 65 FR 50121, Aug. 11, 2000.
    \30\ Id.; see U.S. Dep't of Justice, Enforcement of Title VI of 
the Civil Rights Act of 1964--National Origin Discrimination Against 
Persons with Limited English Proficiency, 65 FR 50123, Aug. 16, 
2000.
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Developments in Disability Discrimination Jurisprudence

    The Americans with Disabilities Act Amendments Act of 2008 amended 
the ADA and the Rehabilitation Act, both of which apply, in distinct 
ways, to different groups of recipients under this rule. Consistent 
with Executive Order 13563's instruction to federal agencies to 
coordinate rules across agencies and harmonize regulatory requirements 
where appropriate, the final rule adopts language consistent with the 
ADAAA and corresponding revisions to the EEOC regulations implementing 
the ADAAA provisions in Title I of the ADA \31\ and the DOJ regulations 
implementing the ADAAA provisions in Title II and Title III of the 
ADA.\32\ The final rule will promote consistent application of 
nondiscrimination obligations across federal enforcement programs and 
accordingly enhance compliance among entities subject to WIOA Section 
188 and the various titles of the ADA. The NPRM stated that, if the DOJ 
changed its proposal in its final rule implementing ADA Titles II and 
III, CRC would review those changes to determine their impact on this 
rule and take appropriate action. After the NPRM was published, DOJ 
issued its final rule implementing ADA Titles II and III and 
accordingly, CRC has reviewed the DOJ rule. The resulting changes are 
described below in the appropriate portions of the Section-by-Section 
Analysis.
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    \31\ See EEOC Final Rule to Implement ADAAA, supra note 18.
    \32\ See DOJ Final Rule to Implement ADAAA, supra note 18.
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    Title I of the ADA prohibits private employers with fifteen or more 
employees, State and local governments, employment agencies, and labor 
unions from discriminating against qualified individuals with 
disabilities in job application procedures, hiring, firing, 
advancement, compensation, job training, and other terms, conditions, 
and privileges of employment.\33\ WIOA Section 188 applies to some of 
these entities in the employment context because it prohibits 
discrimination in employment in the administration of or in connection 
with WIOA Title I-financially assisted programs and activities. The 
EEOC issued final regulations implementing the amendments to Title I of 
the ADA in March 2011.\34\
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    \33\ 42 U.S.C. 12101 et seq.
    \34\ See EEOC Final Rule to Implement ADAAA, supra note 18.
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    Title II of the ADA applies to State and local government entities, 
many of which may also be recipients for purposes of this rule, and, 
like subtitle A of this part, protects qualified individuals with 
disabilities from discrimination on the basis of disability in 
services, programs, and activities provided by State and local 
government entities.\35\ Title II extends the prohibition against 
discrimination established by Section 504 of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 794, to all activities of State and local 
governments regardless of whether these entities receive federal 
financial assistance \36\ and requires compliance with the ADA 
Standards for Accessible Design.\37\ The Department shares 
responsibility with the Department of Justice for implementing the 
compliance procedures of Title II of the ADA for components of State 
and local governments that exercise responsibilities, regulate, or 
administer services, programs, or activities ``relating to labor and 
the work force.'' \38\
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    \35\ See 42 U.S.C. 12131-12165.
    \36\ See 42 U.S.C. 12132.
    \37\ 42 U.S.C. 12134; see 28 CFR part 35.
    \38\ 28 CFR 35.190(b)(7).
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    Title III of the ADA, enforced by the DOJ, prohibits discrimination 
on the basis of disability in the full enjoyment of the goods, 
services, facilities, privileges, advantages, or accommodations of any 
place of public accommodation by a person who owns, leases, or operates 
that place of public accommodation.\39\ Title III applies to businesses 
that are generally open to the public and that fall into one of twelve 
categories listed in the ADA, such as restaurants, day care facilities, 
and doctors' offices,\40\ and requires newly constructed or altered 
places of public accommodation--as well as commercial facilities 
(privately owned, nonresidential facilities such as factories, 
warehouses, or office buildings)--to comply with the ADA Standards for 
Accessible Design.\41\ Many recipients are places of public 
accommodation and thus are subject to

[[Page 87134]]

Title III of the ADA and its accessible design standards. The DOJ 
issued regulations in August 2016 which incorporated amendments to its 
ADA Title II and Title III regulations, consistent with the ADAAA.\42\
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    \39\ 42 U.S.C. 12182.
    \40\ 42 U.S.C. 12181(7).
    \41\ 42 U.S.C. 12186; see 28 CFR part 36.
    \42\ See DOJ Final Rule to Implement ADAAA, supra note 18.
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    This final rule revises the 2015 rule consistent with the ADAAA and 
the regulations issued by the EEOC, and those proposed by the DOJ. The 
ADAAA and its implementing and proposed regulations make it easier for 
an individual seeking protection under the ADA to establish that the 
individual has a disability within the meaning of the statute.\43\ This 
final rule incorporates the rules of construction set out in the ADAAA 
that specify that the definition of ``disability'' is to be interpreted 
broadly, that the primary inquiry should be whether recipients have 
complied with their statutory obligations, and that the question of 
whether an individual's impairment is a disability under the ADA should 
not demand extensive analysis. This final rule also revises the 
definition of ``disability'' and its component parts, including 
``qualified individual,'' ``reasonable accommodation,'' ``major life 
activity,'' ``regarded as having a disability,'' and ``physical or 
mental impairment'' based on specific provisions in the ADAAA, as well 
as the EEOC's regulations and the DOJ's regulations. For example, 
consistent with the ADAAA, the final rule expands the definition of 
``major life activities'' by providing a non-exhaustive list of major 
life activities, which specifically includes the operation of major 
bodily functions. The final rule also includes rules of construction 
that should be applied when determining whether an impairment 
substantially limits a major life activity.
---------------------------------------------------------------------------

    \43\ See 42 U.S.C. 12102(1).
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Developments in Sex Discrimination Jurisprudence

Pregnancy Discrimination
    The final rule includes a section that clarifies recipients' 
existing obligation to avoid discrimination based on pregnancy, 
childbirth, and related medical conditions as a form of sex 
discrimination. Title IX's prohibition of discrimination on the bases 
of pregnancy and actual or potential parental status applies to 
recipients under Title I of WIOA and this part. In addition, the 
Pregnancy Discrimination Act (PDA),\44\ enacted in 1978, governs the 
nondiscrimination obligations of a program or activity receiving 
federal financial assistance in the context of covered employment. 
Nevertheless, the earlier WIA Section 188 regulations did not refer 
specifically to pregnancy discrimination as a form of sex 
discrimination. This final rule corrects that omission and sets out the 
standards that CRC will apply in enforcing the prohibition against 
pregnancy discrimination, consistent with Title IX and with Title VII 
as amended by the PDA, in WIOA Title I-financially assisted programs, 
activities, training, and services.
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    \44\ 42 U.S.C. 2000e(k).
---------------------------------------------------------------------------

    Pregnancy discrimination remains a significant issue. Between 
fiscal year 2001 and fiscal year 2013, charges of pregnancy 
discrimination filed with the EEOC and State and local agencies 
increased from 4,287 to 5,797.\45\ In addition, a 2011 review of 
reported ``family responsibility discrimination'' cases (brought by men 
as well as women) found that low-income workers face ``extreme 
hostility to pregnancy.'' \46\ The EEOC's findings and related research 
are relevant to this rule because the workforce development system is 
the pipeline through which many women find employment opportunities in 
the public and private sectors.
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    \45\ U.S. Equal Emp't Opportunity Comm'n, Pregnancy 
Discrimination Charges, EEOC & FEPAs Combined: FY 1997-FY 2011, 
available at http://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy.cfm; see U.S. Equal Emp't Opportunity Comm'n, Enforcement 
Guidance: Pregnancy Discrimination and Related Issues (June 25, 
2015), available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.
    \46\ Stephanie Bornstein, Center for WorkLifeLaw, UC Hastings 
College of the Law, Poor, Pregnant, and Fired: Caregiver 
Discrimination Against Low-Wage Workers 2 (2011), available at 
http://worklifelaw.org/pubs/PoorPregnantAndFired.pdf.
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Discrimination Based on Sex Stereotyping, Transgender Status, or Gender 
Identity
    Sex stereotyping is one of the most significant barriers to women's 
ability to access services, benefits, training, programs, and 
employment in and through the workforce development system. Decades of 
social science research have documented the extent to which sex 
stereotypes about the roles of women and men and their respective 
capabilities in the workplace can influence decisions about hiring, 
training, promotions, pay raises, and other terms and conditions of 
employment.\47\ This final rule adopts the well-recognized principle 
that employment decisions made on the basis of stereotypes about how 
males and females are expected to look, speak, and act are forms of 
sex-based employment discrimination, and it applies that principle to 
the provision of any aid, benefit, service, or training through WIOA 
Title I programs and activities. The Supreme Court recognized in 1989 
that an employer violates Title VII if its employees' chances of 
promotion depend on whether they fit their managers' preconceived 
notions of how men or women should dress or act.\48\ As the Supreme 
Court stated in Price Waterhouse v. Hopkins, ``we are beyond the day 
when an employer could evaluate employees by assuming or insisting that 
they matched the stereotype associated with their group.'' \49\ In 
Price Waterhouse, the Court held that an employer's failure to promote 
a female senior manager to partner because of the decision-maker's sex-
stereotyped perceptions that she was too aggressive and did not ``walk 
more femininely, talk more femininely, dress more femininely, wear 
make-up, have her hair styled, and wear jewelry'' was unlawful sex-
based employment discrimination.\50\ The principle that sex 
stereotyping is a form of sex discrimination has been applied 
consistently in subsequent Supreme Court and lower-court decisions.\51\ 
Research demonstrates that widely held social attitudes and biases can 
lead to discriminatory decisions, even where

[[Page 87135]]

there is no formal sex-based (or race-based) policy or practice in 
place.\52\
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    \47\ See, e.g., Susan Fiske et al., Controlling Other People: 
The Impact of Power on Stereotyping, 48 a.m. Psychol. 621 (1993); 
Marzarin Banaji, Implicit Social Cognition: Attitudes, Self-Esteem 
and Stereotypes, 102 Psychol. Rev. 4 (1995); Brian Welle & Madeline 
Heilman, Formal and Informal Discrimination Against Women at Work in 
Managing Social and Ethical Issues in Organizations 23 (Stephen 
Gilliland, Dirk Douglas Steiner & Daniel Skarlicki eds., 2007); 
Susan Bruckm[uuml]ller et al., Beyond the Glass Ceiling: The Glass 
Cliff and Its Lessons for Organizational Policy, 8 Soc. Issues & 
Pol. Rev. 202 (2014) (describing the role of sex stereotypes in the 
workplace).
    \48\ Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
    \49\ Id. at 251 (plurality op.).
    \50\ Id. at 235.
    \51\ See, e.g., Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721 
(2003) (stereotype-based beliefs about the allocation of family 
duties on which state employers relied in establishing 
discriminatory leave policies held to be sex discrimination under 
the Constitution); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d 
Cir. 2009) (harassment based on a man's effeminacy); Chadwick v. 
Wellpoint, Inc., 561 F.3d 38 (1st Cir. 2009) (making employment 
decision based on the belief that women with young children neglect 
their job responsibilities is unlawful sex discrimination); Terveer 
v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014) (hostile work 
environment based on stereotyped beliefs about the appropriate 
gender with which an individual should form an intimate 
relationship). Cf. United States v. Virginia, 518 U.S. 515, 533 
(1996) (in making classifications based on sex, State governments 
``must not rely on overbroad generalizations about the different 
talents, capacities, or preferences of males and females'').
    \52\ See, e.g., Kevin Lang & Jee-Yeon K. Lehmann, Racial 
Discrimination in the Labor Market: Theory and Empirics (NBER 
Working Paper No. 17450, 2011), available at http://www.nber.org/papers/w17450; Marianne Bertrand & Sendhil Mullainathan, Are Emily 
and Brendan More Employable than Lakisha and Jamal? A Field 
Experiment on Labor Market Discrimination, 94(4) Am. Econ. Rev. 991 
(2004); Ian Ayres & Peter Siegelman, Race and Gender Discrimination 
in Bargaining for a New Car, 85(3) Am. Econ. Rev. 304 (1995); Marc 
Bendick, Charles Jackson & Victor Reinoso, Measuring Employment 
Discrimination Through Controlled Experiments, 23 Rev. of Black Pol. 
Econ. 25 (1994).
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    Transgender applicants and employees, the vast majority of whom 
report that they have experienced discrimination in the workplace, are 
particularly vulnerable to sex discrimination, including sex 
stereotyping and its consequences.\53\ The EEOC has recognized that 
claims of gender identity discrimination, including discrimination 
grounded in stereotypes about how individuals express their gender, are 
claims of sex discrimination under Title VII.\54\ Courts have also held 
that disparate treatment of a transgender employee may constitute 
discrimination because of the individual's non-conformity to sex 
stereotypes.\55\ Indeed, there has ``been a steady stream of district 
court decisions recognizing that discrimination against transgender 
individuals on the basis of sex stereotyping constitutes discrimination 
because of sex.'' \56\ Further, some courts have held that 
discrimination on the basis of gender identity constitutes 
discrimination ``because of'' sex independent of a showing of 
discrimination on the basis of failure to comport with sex 
stereotypes.\57\
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    \53\ Jaime M. Grant, Lisa M. Mottet & Justin Tanis, National 
Center for Transgender Equality & National Gay & Lesbian Task Force, 
Injustice at Every Turn: A Report of the National Transgender 
Discrimination Survey (2011), available at http://www.transequality.org/sites/default/files/docs/resources/NTDS_Report.pdf (hereinafter ``Injustice at Every Turn'').
    \54\ See Macy v. Dep't of Justice, Appeal No. 0120120821, 2012 
WL 1435995, at *10 (EEOC Apr. 20, 2012), available at http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt 
(``Although most courts have found protection for transgender people 
under Title VII under a theory of gender stereotyping, evidence of 
gender stereotyping is simply one means of proving sex 
discrimination. . . . Thus, a transgender person who has experienced 
discrimination based on his or her gender identity may establish a 
prima facie case of sex discrimination through any number of 
different formulations.''). Other federal agencies have issued 
guidance stating that Title VII's or Title IX's prohibition against 
discrimination on the basis of sex includes claims of sex 
discrimination related to a person's gender identity or transgender 
status. See U.S. Dep't of Justice & U.S. Dep't of Educ., Dear 
Colleague Letter on Transgender Students (May 13, 2016), available 
at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf; Memorandum from Eric Holder, 
Attorney General, to U.S. Attorneys and Heads of Department 
Components, Treatment of Transgender Employment Discrimination 
Claims Under Title VII of the Civil Rights Act of 1964 (Dec. 15, 
2014), available at https://www.justice.gov/file/188671/download; 
U.S. Dep't of Educ., Office for Civil Rights, Questions and Answers 
on Title IX and Sexual Violence (Apr. 29, 2014) (available at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf. 
However, as of the date of publication of this rule, these guidance 
documents are among the ``Guidelines'' subject to a preliminary 
injunction order that prohibits the federal government from ``using 
the Guidelines or asserting the Guidelines carry weight in any 
litigation initiated following the date of this Order.'' Texas v. 
United States, No. 7:16-cv-00054-O, slip op. at 37 (N.D. Tex. Aug. 
21, 2016), ECF No. 58; see id. at 3 n.4 (identifying the documents 
referred to in the order as the ``Guidelines'').
    \55\ Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) 
(holding that transgender woman was a member of a protected class 
based on her failure to conform to sex stereotypes and thus her 
Title VII claim was actionable); Smith v. City of Salem, 378 F.3d 
566, 575 (6th Cir. 2004) (``discrimination against a plaintiff who 
is a transsexual--and therefore fails to act and/or identify with 
his or her gender--is no different from the discrimination directed 
against [the plaintiff] in Price Waterhouse, who, in sex-
stereotypical terms, did not act like a woman''); see also Glenn v. 
Brumby, 663 F.3d 1312 (11th Cir. 2011) (termination of a transgender 
employee constituted discrimination on the basis of gender non-
conformity and sex-stereotyping discrimination under Equal 
Protection Clause).
    \56\ Macy, 2012 WL 1435995, at *9; see Michaels v. Akal 
Security, Inc., No. 09-cv-1300, 2010 WL 2573988, at * 4 (D. Colo. 
June 24, 2010); Lopez v. River Oaks Imaging & Diagnostic Group, 
Inc., 542 F. Supp. 2d 653, 660 (S.D. Tex. 2008); Mitchell v. Axcan 
Scandipharm, Inc., No. Civ. A. 05-243, 2006 WL 456173 (W.D. Pa. Feb. 
17, 2006); Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-CV-
0375E(SC), 2003 WL 22757935 (W.D.N.Y. Sept. 26, 2003); Doe v. United 
Consumer Fin. Servs., No. 1:01 CV 1112, 2001 WL 34350174 (N.D. Ohio 
Nov. 9, 2001).
    \57\ See Schroer v. Billington, 577 F. Supp. 2d 293, 305-07 
(D.D.C. 2008) (withdrawal of a job offer from a transgender 
applicant constituted discrimination ``because of sex'' in violation 
of Title VII, analogizing to cases involving discrimination based on 
an employee's religious conversion, which undeniably constitutes 
discrimination because of religion under Title VII); see also Rumble 
v. Fairview Heath Servs., No. 14-cv-2037, 2015 WL 1197415, at *10 
(D. Minn. Mar. 16, 2015) (Section 1557 of the Affordable Care Act).
---------------------------------------------------------------------------

    As the NPRM noted, federal contractors that operate Job Corps 
centers, which are covered by Section 188 and this part,\58\ may also 
be covered by the requirements of Executive Order 11246, which 
expressly requires that contractors meeting certain dollar threshold 
requirements refrain from discrimination in employment based on sexual 
orientation and gender identity, as well as race, color, religion, 
national origin, and sex, and take affirmative action to ensure equal 
employment opportunity.\59\
---------------------------------------------------------------------------

    \58\ See Sec.  38.2(b)(4).
    \59\ Executive Order 13672, issued on July 21, 2014, amended 
Executive Order 11246 to add sexual orientation and gender identity 
as expressly protected bases, and applies to government contracts 
entered into or modified on or after April 8, 2015, the effective 
date of OFCCP's implementing regulations promulgated thereunder. See 
OFCCP Executive Order 13672 Final Rule, supra note 19.
---------------------------------------------------------------------------

    Consistent with the above jurisprudence, the final rule provides 
that complaints of discrimination based on sex stereotyping, 
transgender status, or gender identity will be recognized and treated 
as complaints of sex discrimination.
    The NPRM further noted the growing number of federal courts 
recognizing that sexual orientation discrimination constitutes 
discrimination on the basis of sex when the discrimination is rooted in 
fundamental sex-based norms and stereotypes.\60\ The EEOC has also 
concluded that ``[d]iscrimination on the basis of sexual orientation is 
premised on sex-based preferences, assumptions, expectations, 
stereotypes, or norms.'' \61\ As explained more fully below in the 
Section-by-Section Analysis of Sec.  38.7(a) and new Sec.  38.7(d)(10), 
which we now add to the rule, CRC concludes that Section 188's 
prohibition of discrimination on the basis of sex includes, at a 
minimum, sex discrimination related to an individual's sexual 
orientation where the evidence establishes that the discrimination is 
based on gender stereotypes.
---------------------------------------------------------------------------

    \60\ See, e.g., Isaacs v. Felder Servs., No. 2:13cv693-MHT, 2015 
WL 6560655, at *3-4 (M.D. Ala. Oct. 29, 2015); Terveer v. 
Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014); Koren v. Ohio 
Bell Tel. Co., 894 F. Supp. 2d 1032, 1038 (N.D. Ohio 2012); Centola 
v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002); Heller v. 
Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 
2002); Videckis v. Pepperdine Univ., No. CV 15-00298, 2015 WL 
8916764 (C.D. Cal. Dec. 15, 2015).
    \61\ Baldwin v. Dep't of Transp., Appeal No. 0120133080, 2015 WL 
4397641, at *5 (EEOC July 16, 2015); see also Complainant v. Dep't 
of Homeland Sec., Appeal No. 0120110576, 2014 WL 4407422 (EEOC Aug. 
20, 2014); Veretto v. U.S. Postal Serv., Appeal No. 0120110873, 2011 
WL 2663401 (EEOC July 1, 2011); Castello v. U.S. Postal Serv., 
Request No. 0520110649, 2011 WL 6960810 (EEOC Dec. 20, 2011).
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Harassment

    This final rule includes a section to provide direction as to a 
recipient's existing obligations regarding unlawful harassment. Courts 
have recognized for many years that harassment based on protected 
categories may give rise to violations of Title VI, Title VII, Section 
504, and Title IX and that unlawful harassment may take many forms.\62\ 
The

[[Page 87136]]

rule adds a section that sets out the prohibition against these various 
forms of unlawful harassment.
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    \62\ See, e.g., Harris v. Forklift Sys., 510 U.S. 17 (1993) 
(sex); Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) (sex); Zeno 
v. Pine Plains Cent. Sch. Dist., 702 F.3d 655 (2d Cir. 2012) (race); 
Daniels v. Essex Grp., Inc., 937 F.2d 1264, 1274 (7th Cir. 1991) 
(race); Rogers v. W.-S. Life Ins. Co., 792 F. Supp. 628 (E.D. Wis. 
1992) (race); Booth v. Houston, 58 F. Supp. 3d 1277 (M.D. Ala. 2014) 
(disability); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 
(1998) (school can be held liable if a teacher sexually harasses a 
student); Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) 
(school can be held liable for failing to address a student's sexual 
harassment of another student).
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    The U.S. Department of Education has issued guidance interpreting 
the scope of prohibitions against sexual harassment, including acts of 
sexual violence, under Title IX that apply to WIOA Title I-financially 
assisted educational and training programs.\63\ Title IX protects 
individuals from discrimination based on sex in education programs and 
activities that receive federal financial assistance, including WIOA 
Title I programs and activities that are education and training 
programs.\64\ The final rule incorporates language in Subpart A that 
reflects the U.S. Department of Education's interpretation of the scope 
of Title IX's prohibition against harassment based on sex. In doing so, 
this rule makes the Department's enforcement of current legal standards 
consistent with those of another agency that regulates the same 
recipient community.
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    \63\ U.S. Dep't of Educ., Office for Civil Rights, Dear 
Colleague Letter: Sexual Violence (Apr. 4, 2011), available at 
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf; U.S. Dep't of Educ., Office for Civil Rights, Revised 
Sexual Harassment Guidance: Harassment of Students by School 
Employees, Other Students, or Third Parties, 66 FR 5512 (Jan. 19, 
2001) (available at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf) (hereinafter ``Revised Sexual Harassment Guidance'').
    \64\ 20 U.S.C. 1681 et seq.
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Increased Provision of Services Using Technology, Including the 
Internet

    The increased integration of, and in some instances complete shift 
to, online service delivery models in the workforce development system 
since 1999 required that the 1999 and 2015 rules be updated to address 
the nondiscrimination and equal opportunity implications raised by 
these changes. As of 2015, approximately 16 percent of American adults 
did not use the Internet.\65\ Moreover, research suggests that a larger 
percentage of older individuals may not possess sufficient knowledge 
and understanding of computers and Web-based programs to be able to 
access information via a Web site or file for benefits through an 
online system.\66\ Additionally, as of 2015, 19 percent of Hispanic 
individuals (including those who are proficient in English) and 22 
percent of Black, non-Hispanic individuals were not using the 
Internet.\67\ Similarly, adults with disabilities were significantly 
less likely to use the Internet than adults without disabilities.\68\
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    \65\ Pew Research Center, Americans' Internet Access: 2000-2015 
(June 26, 2015), available at http://www.pewinternet.org/2015/06/26/americans-internet-access-2000-2015/.
    \66\ Id.
    \67\ Id.
    \68\ Pew Research Center, Digital Differences (Apr. 13, 2012), 
available at http://pewinternet.org/~/media//Files/Reports/2012/
PIP_Digital_differences_041312.pdf.
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Subparts B Through E

    Subpart B, Recordkeeping and Other Affirmative Obligations, 
includes revisions to the written assurance language that grant 
applicants are required to include in their grant applications, as well 
as revisions to the sections regarding the role of EO Officers and 
recipients' responsibilities to ensure that they designate recipient-
level EO Officers with sufficient expertise, authority, staff, and 
resources to carry out their responsibilities, as well as Governors' 
additional responsibility to ensure that they designate State-level EO 
Officers with sufficient expertise, authority, staff and resources to 
carry out their obligations. The final rule also changes the 
requirements regarding data, and information collection and 
maintenance, and revises the section on outreach responsibilities of 
recipients.
    Changes to Subpart C, regarding Governors' responsibilities to 
implement the nondiscrimination and equal opportunity requirements of 
WIOA, include changing the title of the Methods of Administration, the 
tool used by Governors to implement their monitoring and oversight 
responsibilities, to ``Nondiscrimination Plan.'' In addition, the final 
rule provides more direction about Governors' responsibilities and 
CRC's procedures for enforcing those responsibilities, thus addressing 
an inadvertent gap in the existing regulations.
    Changes to Subpart D regarding compliance procedures include 
language to strengthen the preapproval compliance review process by 
requiring Departmental grantmaking agencies to consult with the 
Director of CRC to review whether CRC has issued a Notice to Show Cause 
or a Final Determination against an applicant that has been identified 
as a probable awardee. This final rule also expands the situations 
under which CRC may issue a Notice to Show Cause, merges some of the 
existing sections about the complaint processing procedures for better 
readability, and adds language to clarify that any person or their 
representative may file a complaint based on discrimination and 
retaliation under WIOA and this part.
    Subpart E, Federal Procedures for Effecting Compliance, substitutes 
the Administrative Review Board for the Secretary as the entity that 
issues final agency decisions, and makes several other technical 
revisions.

Benefits of the Final Rule

    The final rule will benefit both recipients and beneficiaries in 
several ways. First, by updating and clearly and accurately stating the 
existing principles of applicable law, the rule will facilitate 
recipient understanding and compliance, thereby reducing incidents of 
noncompliance and associated costs incurred when noncompliant. Second, 
the rule will benefit recipients' beneficiaries, employees, and job 
applicants by allowing them to participate in programs and activities 
or work free from discrimination. Importantly, recipients are already 
subject to the federal nondiscrimination laws that these updated 
regulations incorporate, so many of the new substantive 
nondiscrimination provisions do not impose new obligations.
    Third, this final rule will increase equality of opportunity in the 
workforce development system, which encompasses thousands of 
applicants, participants, beneficiaries, and employees of recipients. 
For example, regarding discrimination on the basis of sex, the final 
rule clarifies that adverse treatment of applicants to, beneficiaries 
of, and participants in recipients' WIOA Title I programs and 
activities and their employees or applicants for employment because of 
gender identity or gender-based stereotypes constitutes sex 
discrimination. By expressly recognizing that discrimination against an 
individual on the basis of gender identity or transgender status is 
unlawful sex discrimination, the final rule provides much-needed 
regulatory protection to transgender individuals, the majority of whom 
report they have experienced discrimination in the workplace.\69\ In 
addition, by providing that pregnant individuals may be entitled to 
accommodations when such accommodations or modifications are provided 
to similarly situated individuals, this rule will protect pregnant 
employees, beneficiaries, applicants, and participants from losing jobs 
or access to educational and training opportunities.
---------------------------------------------------------------------------

    \69\ Injustice at Every Turn, supra note 53.
---------------------------------------------------------------------------

    Regarding discrimination on the basis of national origin affecting 
LEP individuals, the rule will improve LEP individuals' participation 
in the workforce development system by

[[Page 87137]]

making the LEP requirements easier to understand and thus easier to 
implement. Recipients will find complying with the rule easier using 
suggestions provided in the new appendix to the LEP regulation.
    Finally, the rule will benefit public understanding of the law. 
This focus on increasing public understanding is consistent with 
section 6 of Executive Order 13563, which requires agencies to engage 
in retrospective analyses of their rules ``and to modify, streamline, 
expand, or repeal [such rules] in accordance with what has been 
learned.''

Minor Technical Corrections Made Throughout the Rule

    Throughout the final rule, CRC has made the following technical 
corrections for the sake of accuracy, clarity, and consistency. First, 
CRC corrects internal numbering and references to other rules, and 
standardizes the form of internal cross-references. Second, CRC avoids 
introducing and using abbreviations unnecessarily. Third, CRC uses the 
serial comma in lists of three or more items. Fourth, CRC adds headings 
for consistency and standardizes capitalization in text and headings, 
including lowercasing ``one-stop'' for consistency with WIOA and 
capitalizing ``State'' and ``State Program.'' Fifth, CRC uses hyphens 
and en dashes as appropriate to clarify multiword modifiers (for 
example, ``senior-level employee,'' ``WIOA Title I-financially 
assisted''). Sixth, where multiple bases are listed in an inclusive 
context, CRC uses ``and'' rather than ``or'' to clarify that all of the 
listed bases are included (for example, ``including pregnancy, 
childbirth, and related medical conditions'').
    Finally, in the proposed rule, CRC at times used the word ``any'' 
prior to the list of singular terms ``aid, benefit, service, or 
training'' and at other times did not use the word ``any,'' even though 
the list of terms was not intended to be specific. In the final rule, 
where the singular terms ``aid, benefit, service, or training'' are 
used in a nonspecific context, CRC adds the word ``any.'' CRC has made 
these changes only for correctness and consistency and intends no 
substantive changes by making them.
    These changes are not further addressed in the section-by-section 
analysis.

Comments on Gender-Neutral Language Usage Throughout the Rule

    The preamble to the proposed rule explained that replaced ``he or 
she'' with ``the individual,'' ''person,'' or other appropriate 
identifier wherever possible.\70\ The discussion in the preamble to the 
proposed rule referred only to the language that CRC used in the NPRM, 
not to any requirement imposed on recipients. CRC received comments 
supporting and opposing this language usage.
---------------------------------------------------------------------------

    \70\ U.S. Dep't of Labor, Office of the Sec'y, Implementation of 
the Nondiscirmination and Equal Opportunity Provisions of the 
Workforce Innovation and Opportunity Act; Proposed Rule, 81 FR 4494, 
4495, Jan. 26, 2016 (hereinafter ``CRC WIOA NPRM'').
---------------------------------------------------------------------------

    Comments: Eight commenters--a group of ten advocacy organizations 
and a union, five individual advocacy organizations, and two health 
organizations--supported CRC's use of gender-neutral language. Several 
of these commenters stated that individuals who do not identify as male 
or female ``face pervasive bias and misunderstanding, and often are 
unable to access benefits and services, including those of WIOA [Title 
I]-funded programs.'' All eight organizational commenters applauded 
CRC's decision to avoid gender-specific terminology in the language of 
the rule to signal that protection from discrimination under WIOA 
applies to individuals regardless of gender. CRC also received comments 
from multiple individuals opposing CRC's decision to avoid using 
gender-specific language. Many of these commenters' objections to 
gender-neutral language focused on the English language's traditional 
use of gendered pronouns; some individual commenters also expressed 
doubt regarding the existence of individuals who do not identify as 
male or female. The majority of the individual commenters who opposed 
CRC's decision to avoid gender-specific terminology interpreted CRC's 
decision to be imposing a requirement on recipients to do the same, at 
a high cost.
    Response: CRC retains the use of gender-neutral language in the 
final rule because it agrees with the organizational commenters on this 
issue that it is appropriate for the final rule to signal that 
protection from discrimination under WIOA applies to individuals of all 
genders. CRC clarifies that this rule does not impose any obligation 
(or cost) on recipients to use gender-neutral language.
    Comments: In addition to the supportive comments they submitted as 
described above, five individual advocacy organizations and two health 
organizations suggested that CRC remove any remaining instances of ``he 
or she,'' ``him or her,'' and ``his or her'' throughout the rule.
    Response: For the same reasons as described above, and for the sake 
of consistency in avoiding gender-specific terminology throughout the 
final rule, CRC removes gender-specific terminology from the following 
provisions: Sec. Sec.  38.4(q)(5)(iii)(C) (replacing ``he or she'' with 
``the individual''), 38.4(ff)(3)(ii)(A) (replacing ``him or her'' with 
``the individual''), 38.15(a)(4)(ii) (replacing ``his or her'' with 
``the individual's''), 38.16(h) (replacing each instance of ``his or 
her'' with ``the individual's''), 38.30 (replacing ``he or she'' with 
``the EO Officer''), 38.55(c)(2) (replacing ``s/he'' with ``the 
Governor''), 38.64(a) (replacing ``he or she'' with ``the Director''), 
38.69(a) (replacing ``his/her'' with ``the person's''), 38.81(d) 
(replacing ``he or she'' with ``the Director''), 38.83 (replacing ``he 
or she'' with ``the Director''), 38.91(b)(3) (replacing ``he or she'' 
with ``the Governor''), and 38.115(c)(1) (replacing ``he or she'' with 
``the Director''). These changes are not further addressed in the 
section-by-section analysis.

II. Section-by-Section Analysis

    This Section-by-Section Analysis describes each section in the 
proposed rule and identifies and discusses the significant comments 
received and any changes made.

Subpart A--General Provisions

General Comments
    Comment: A professional association applauded the Department's 
recognition of implicit prejudice and stereotyping and encouraged the 
Department to provide training for WIOA staff to ensure that there is 
an understanding of these issues when designing vocational training 
programs.
    Response: CRC agrees that training WIOA staff to understand 
implicit prejudice and stereotyping is a best practice, but declines to 
explicitly mandate a specific level of training in the final rule. Each 
recipient is responsible for ensuring compliance with its obligations 
under WIOA and this part, including determining the appropriate types 
and frequency of staff training.
    Comment: An advocacy organization encouraged the Department to 
focus attention on older workers in the workforce development system. 
The commenter stressed that older workers face significant barriers 
including skill and technological deficits compared to their younger 
counterparts.
    Response: Under WIOA and this part, recipients are required to 
comply with their equal opportunity and

[[Page 87138]]

nondiscrimination obligations on a variety of bases, including age. We 
understand the commenter's concerns, but decline to emphasize 
compliance in any one area over other areas.
    Comment: In a joint comment, two individuals objected to the NPRM's 
proposal to replace ``on the grounds of'' with ``on the basis of'' 
before listing the protected categories in the rule, such as race, 
color, religion, or sex. The commenters asserted that ``on the grounds 
of'' is a legal term and that use of ``on the basis of'' is deceptive.
    Response: CRC disagrees that the term ``on the basis of'' is 
deceptive. That phrase is a legal term of art that signals for which 
categories discrimination is prohibited. It is widely used in 
regulations and cases addressing antidiscrimination laws, and it is 
specifically used in WIOA Section 188(a). Therefore, it is appropriate 
to use in this rule.
Purpose Sec.  38.1
    Proposed Sec.  38.1 retained the purpose of the 1999 and 2015 
rules: ``to implement the nondiscrimination and equal opportunity 
provisions'' of WIOA Section 188.\71\ CRC made minor revisions, such as 
replacing ``on the grounds of'' with ``on the basis of'' to be 
consistent with nondiscrimination language in other Department civil 
rights regulations.
---------------------------------------------------------------------------

    \71\ Previously WIA Section 188.
---------------------------------------------------------------------------

    Comment: An individual commenter opposed the rule, reasoning that 
the broad scope of prohibited discrimination would lead to divisions in 
our society.
    Response: It is beyond the scope of CRC's authority to refuse to 
implement Section 188 of WIOA.\72\
---------------------------------------------------------------------------

    \72\ See 29 U.S.C. 3248(e).
---------------------------------------------------------------------------

    CRC finalizes Sec.  38.1 as proposed, with the following technical 
edits: correcting the statutory reference in footnote 1 and making 
minor technical modifications to clarify the list of protected bases, 
as discussed below in connection with Sec.  38.5.
Applicability Sec.  38.2
    Proposed Sec.  38.2 explained to which entities part 38 applies, 
including recipients \73\ and programs and activities operated by one-
stop \74\ partners that are part of the one-stop delivery system. 
Proposed Sec.  38.2(a)(3) revised the 2015 rule to limit covered 
employment practices to those ``of a recipient and/or One-Stop partner, 
to the extent that the employment is in the administration of or in 
connection with programs and activities that are being conducted as a 
part of WIOA Title I or the One-Stop delivery system.'' That limitation 
tracked the statutory provision in Section 188(a)(2) of WIOA.\75\ CRC 
also proposed deleting Sec.  38.2(b)(5) of the 2015 rule, so that 
federally operated Job Corps Centers would be included within the 
requirements of this part. CRC received several comments on this 
section.
---------------------------------------------------------------------------

    \73\ See Sec.  38.4(zz).
    \74\ One-stop career centers are designed to provide a full 
range of assistance to job seekers under one roof. The centers offer 
training referrals, career counseling, job listings, and similar 
employment-related services.
    \75\ 29 U.S.C. 3248(a)(2).
---------------------------------------------------------------------------

    Comment: A union asked for clarification of the duties for which it 
is individually responsible, as a national training contractor, and for 
which it is jointly responsible with other parties, including Job Corps 
Outreach and Admissions contractors, Center Directors, and others. The 
commenter stated that its responsibilities are not clear in light of 
the oversight and direction by Job Corps Centers, regional offices, and 
the National office, as well as the responsibilities contractually 
assigned to other contractors.
    Response: Each recipient, as defined in Sec.  38.4(zz), is 
individually responsible for complying with WIOA Section 188 and these 
implementing regulations. Job Corps national training contractors are 
recipients, which must designate a recipient-level Equal Opportunity 
Officer who will ensure that the training contractor and its 
subrecipients (if any) are not in violation of their equal opportunity 
and nondiscrimination obligations.\76\ Those obligations include 
outreach and admissions under Sec.  38.5 generally and Sec.  38.40 
specifically. While recipients may work cooperatively to ensure equal 
opportunity and nondiscrimination, each recipient must continue to 
individually evaluate whether such collaborative efforts are 
sufficient. All recipients, including Job Corps national training 
contractors, are ultimately responsible for equal opportunity and 
nondiscrimination compliance under WIOA regarding all aspects of their 
own programs, activities, and covered employment.
---------------------------------------------------------------------------

    \76\ See Sec. Sec.  38.4(zz)(9), 38.28(b), and 38.31.
---------------------------------------------------------------------------

    Comment: A State agency asked about partner agencies in the one-
stop system, specifically if all sections of the regulations apply to 
every partner, and whether the partner agencies will be monitored by 
the Equal Opportunity Officer for compliance with WIOA Section 188. The 
commenter recommended against requiring all partner agencies to comply 
with the regulations unless colocated within a one-stop center.
    Response: Under WIOA and this part, these regulations apply to each 
recipient. The term ``recipient'' includes every one-stop partner 
listed in WIOA section 121(b) \77\ whenever the partner operates or 
conducts programs or activities that are part of the one-stop delivery 
system.\78\ As discussed below,\79\ in most cases required and 
additional partners will be monitored by the State-level EO Officer in 
addition to their own recipient-level EO Officers for compliance with 
WIOA and this part.\80\
---------------------------------------------------------------------------

    \77\ Section 38.4(zz) (``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'').
    \78\ See Sec.  38.2(a)(2) (part 38 applies to ``[p]rograms and 
activities that are part of the one-stop delivery system and that 
are operated by one-stop partners . . . to the extent that the 
programs and activities are being conducted as part of the one-stop 
delivery system'').
    \79\ See infra discussion of Sec. Sec.  38.28 and 38.29.
    \80\ One-stop partners are not required to designate a separate 
EO Officer if the partner is a service provider under Sec.  
38.4(ggg) (in which case the State-level EO Officer and/or the 
LWDA's grant recipient's EO Officer has this responsibility under 
Sec.  38.33); if the partner is a small recipient (in which case the 
partner designates a responsible individual under Sec.  38.32); or 
if, under the structure of the Governor's Sec.  38.54 
Nondiscrimination Plan, the State-Level EO Officer is the partner's 
EO Officer.
---------------------------------------------------------------------------

    Regarding the question of colocation, this final rule covers all 
one-stop partners (both required partners and additional partners) 
regardless of whether a partner is colocated within a one-stop center. 
Section 188(b) of WIOA requires the Secretary to enforce the equal 
opportunity and nondiscrimination provisions of WIOA with respect to 
all States and other recipients. One-stop partners, other than one-stop 
partners that are National Programs, are a part of State Programs to 
which WIOA Section 188 applies.\81\ Accordingly, these regulations 
include one-stop partners as recipients that are subject to the 
nondiscrimination and equal opportunity requirements of this part, to 
the extent that they participate in the one-stop delivery system. This 
result does not change because a partner is not colocated with a one-
stop center. One-stop centers are not just a physical location, but may 
also include a larger electronic network. Regardless of location, 
recipients, including one-stop partners that operate programs and 
activities that are part of the one-stop delivery system, are subject 
to these regulations.
---------------------------------------------------------------------------

    \81\ National Programs are otherwise covered by WIOA Section 188 
and this part. See Sec. Sec.  38.4(jj) (defining ``National 
Programs'') and 38.4(zz)(12) (defining ``recipients'' to include 
National Programs).
---------------------------------------------------------------------------

    Comment: Several advocacy organizations supported deletion of the

[[Page 87139]]

current exclusion of federally operated Job Corps Centers from the 
application of the provisions of part 38. The commenters stated that 
this change is important to ensure the uniform applicability of 
nondiscrimination and equal opportunity requirements throughout the Job 
Corps system and to provide a mechanism to address complaints that 
arise in federally operated Job Corps Centers.
    Response: CRC agrees with the commenter and believes that adopting 
the NPRM's proposed change from the 1999 and 2015 rules will ensure 
equal opportunity and nondiscrimination in the entire Job Corps 
program. As explained in the NPRM, this change is consistent with WIOA 
Section 188(d), which does not distinguish between federally operated 
and privately operated Job Corps centers, as well as with the 
Department of Agriculture's approach for a number of years to 
nondiscrimination and equal opportunity in the Job Corps centers it 
operates.\82\ The change also makes our rule consistent with another of 
the Department's final rules implementing WIOA, which requires that, 
when the Secretary of Labor enters into an agreement with the Secretary 
of Agriculture for the funding, establishment, and operation of 
federally operated Job Corps centers, provisions are included to ensure 
that the Department of Agriculture complies with the regulations under 
20 CFR 686, including nondiscrination obligations under Section 188 of 
WIOA.\83\
---------------------------------------------------------------------------

    \82\ U.S. Dep't of Agric., Forest Service, WO/Civil Rights 
Staff, Reference Guide, Key EEO and Civil Rights Laws, Statutes, and 
Regulations (April 2010).
    \83\ U.S. Dep't of Labor, Emp't & Training Admin., Workforce 
Innovation and Opportunity Act; Final Rule, 81 FR 56072, Aug. 19, 
2016.
---------------------------------------------------------------------------

    In Sec.  38.2(b)(1), CRC clarifies that ``Department'' means the 
U.S. Department of Labor. Effect on Other Obligations Sec.  38.3
    Proposed Sec.  38.3 described the relationship between this rule 
and other laws that may apply to recipients. To establish parity with 
parallel provisions in other federal nondiscrimination regulations,\84\ 
proposed Sec.  38.3 added a proviso that ``This part does not 
invalidate or limit the obligations, remedies, rights and procedures 
under any Federal law, or the law of any State or political 
subdivision, that provides equal or greater protection for the rights 
of persons as compared to this part.'' In addition, Sec.  38.3 proposed 
adding Executive Order 13160 \85\ to the additional obligations that 
compliance with this part does not affect.
---------------------------------------------------------------------------

    \84\ See, e.g., 41 CFR 60-741.1(c)(3).
    \85\ 65 FR 39775, June 27, 2000. Executive Order 13160 prohibits 
discrimination on the basis of race, sex, color, national origin, 
disability, religion, age, sexual orientation, or status as a parent 
in federally conducted education and training programs and 
activities.
---------------------------------------------------------------------------

    Several advocacy organizations supported the clarification that 
these regulations do not limit the remedies, rights, and procedures 
under federal, State, or local law that provide equal or greater 
protection than the regulations. The commenters appreciated federal 
recognition of States' and localities' interests in promoting 
nondiscrimination and equal employment opportunity.
    CRC finalizes the provisions in Sec.  38.3 as proposed, with the 
exception of one technical change, replacing ``incorporated into this 
part by reference'' with ``adopted by this part'' in paragraph (b).
Definitions Sec.  38.4
    The proposed rule retained the majority of the definitions 
contained in the 1999 and 2015 rules. Revisions in proposed Sec.  38.4 
included updating existing definitions consistent with applicable law 
and adding new definitions, as discussed in the preamble to the 
proposed rule. The discussion below addresses only those proposed 
definitions on which CRC received substantive comments. For the reasons 
discussed in the NPRM, CRC adopts without modification all of the 
proposed definitions not addressed below.
Aid, Benefit, Service, or Training
    CRC received no comments on the definition of ``aid, benefit, 
service, or training'' in Sec.  38.4(b) but is reorganizing the 
definition to clarify its parts. No substantive changes are intended by 
the reorganization.
Auxiliary Aids or Services
    Proposed Sec.  38.4(h) revised the definition of ``auxiliary aids 
or services'' to include new technology alternatives that have become 
available since the 1999 rule, such as video remote interpreting (VRI) 
services and real-time computer-aided transcription services. This 
provision mirrors the definition of ``auxiliary aids and services'' in 
the DOJ regulations implementing Title II of the ADA.\86\ CRC received 
three comments supporting the new definition, with one commenter noting 
that the rule provides guidance for personnel not familiar in working 
with individuals with sensory disabilities. Accordingly, CRC adopts 
Sec.  38.4(h) as proposed.
---------------------------------------------------------------------------

    \86\ See 28 CFR 35.104.
---------------------------------------------------------------------------

Babel Notice
    The proposed rule added a definition for ``Babel notice'' in Sec.  
38.4(i). A Babel notice is a short notice in multiple languages 
informing the reader that the document (e.g., application form, consent 
form, notice of rights and responsibilities) or electronic media (e.g., 
Web site, ``app,'' email) contains vital information, and explaining 
how to access language services to have the contents of the document or 
electronic media provided in other languages. CRC proposed adding this 
definition because Babel notices are an integral tool for ensuring that 
recipients meet their nondiscrimination and equal opportunity 
obligations under WIOA and this part regarding LEP individuals. In the 
proposed rule, CRC sought comment on this definition.
    Several advocacy organizations expressed support for the inclusion 
of a definition for ``Babel notice'' to codify and clarify the 
intention of these notices, specifically with respect to individuals 
who are limited English proficient.
    Comment: An advocacy organization recommended that the definition 
of ``Babel notice'' be revised to specify that alternate formats are 
available as an accommodation through the recipient at no cost to the 
beneficiary.
    Response: We appreciate the commenter's concern; however, the Babel 
notice is a safeguard against national origin discrimination against 
LEP individuals. Alternate formats are addressed in Sec.  38.15 
regarding communications with individuals with disabilities. 
Nevertheless, we agree with the commenter that it is important to 
notify individuals with disabilities of their right to request 
materials in accessible formats, and of their right to equally 
effective communication with recipients. For this reason, CRC amends 
the equal opportunity notice in Sec.  38.35 to add two sentences 
alerting individuals with disabilities of their right to request 
auxiliary aids and services at no cost.
    For the reasons described in the proposed rule and considering the 
comments received, we are finalizing the definition proposed in Sec.  
38.4(i) without modification, except for minor technical corrections to 
capitalization.
Disability
    Proposed Sec.  38.4(q) updated the definition of ``disability'' to 
reflect the changes made by the ADA Amendments Act of 2008 \87\ and to 
make the

[[Page 87140]]

definition consistent with subsequent EEOC regulations \88\ and 
proposed DOJ regulations \89\ to implement the ADAAA. CRC received two 
general comments supporting these changes and adopts them as proposed, 
with minor technical revisions. In addition, as we proposed to do in 
the NPRM,\90\ the final rule makes numbering and minor editing and 
wording changes to Sec.  38.4(q) to conform in most instances to DOJ's 
August 2016 regulations to implement the ADAAA.\91\ We address the 
changes the final rule makes to each proposed paragraph of Sec.  
38.4(q) in turn.
---------------------------------------------------------------------------

    \87\ 42 U.S.C. 12101 et seq., Public Law 110-325, 122 Stat. 3553 
(2008).
    \88\ 29 CFR part 1630.
    \89\ U.S. Dep't of Justice, Office of the Attorney General, 
Amendment of Americans with Disabilities Act Title II and Title III 
Regulations to Implement ADA Amendments Act of 2008; Proposed Rule, 
79 FR 4839, Jan. 30, 2014. The Department of Justice has since 
issued its final rule. See DOJ Final Rule to Implement ADAAA, supra 
note 18.
    \90\ CRC WIOA NPRM, supra note 70, at 4497.
    \91\ See DOJ Final Rule to Implement ADAAA, supra note 18, at 
53223-53225.
---------------------------------------------------------------------------

    Consistent with the ADAAA, the EEOC regulations implementing the 
ADAAA, and now with DOJ's ADA Title II regulations implementing the 
ADAAA, proposed Sec.  38.4(q)(1)(ii) (renumbered Sec.  38.4(q)(2) in 
the final rule) set forth rules of construction that provided the 
standards for application of the definition of disability. CRC received 
a comment from a State agency under a related definition, Sec.  
38.4(yy) (reasonable accommodation), that using the term ``covered 
entity'' rather than ``recipient'' was confusing. CRC agrees and, as 
discussed below, replaces ``covered entity'' with ``recipient'' 
throughout the final rule.\92\ Since the term ``covered entity'' 
appeared here in proposed Sec.  38.4(q)(1)(ii)(B) (renumbered Sec.  
38.4(q)(2)(iii) in the final rule) and Sec.  38.4(q)(5)(i)(C) 
(renumbered Sec.  38.4(q)(5)(i)(B) in the final rule), CRC is replacing 
that term with ``recipient'' to ensure consistency.
---------------------------------------------------------------------------

    \92\ CRC is replacing ``covered entity'' with ``recipient'' in 
two sections: In the definition of ``disability'' in Sec.  38.4(q) 
and in the definition of ``reasonable accommodation'' in Sec.  
38.4(yy). CRC is also replacing ``entities'' with ``recipients'' in 
Sec.  38.4(q)(5)(ii).
---------------------------------------------------------------------------

    Consistent with the ADAAA, the EEOC regulations implementing the 
ADAAA, and now with DOJ's ADA Title II regulations to implement the 
ADAAA, proposed Sec.  38.4(q)(2) (renumbered Sec.  38.4(q)(2)(i) in the 
final rule) required that the definition of disability be construed in 
favor of broad coverage of individuals with disabilities. CRC received 
no comments on this provision and adopts it without change in the final 
rule, except for minor technical changes to conform with DOJ's ADA 
Title II regulations to implement the ADAAA.
    Proposed Sec.  38.4(q)(3) revised the definition of ``physical or 
mental impairment,'' in the definition of disability, to add ``immune, 
circulatory'' to the body systems listed in proposed Sec.  
38.4(q)(3)(A) (renumbered Sec.  38.4(q)(3)(i)(A) in the final rule); to 
add ``pregnancy-related medical conditions'' to Sec.  38.4(q)(3)(ii); 
\93\ to add ``intellectual disability'' (formerly termed ``mental 
retardation'' in the 1999 and 2015 rules) to Sec.  38.4(q)(3)(i)(B); 
and to add dyslexia to ``specific learning disabilities'' in Sec.  
38.4(q)(3)(ii). In addition, this final rule adds ``Attention Deficit 
Hyperactivity Disorder'' (ADHD) in Sec.  38.4(q)(3)(ii). This update to 
the definition of ``physical or mental impairment'' substantially 
conforms to the definition in DOJ's ADA Title II regulations to 
implement the ADAAA.\94\ CRC received one comment from a coalition of 
disability advocacy organizations supporting this provision and adopts 
it without change in the final rule, except for the addition of ADHD 
and minor technical changes to conform with DOJ's ADA Title II 
regulations to implement the ADAAA.
---------------------------------------------------------------------------

    \93\ See DOJ Final Rule to Implement ADAAA, supra note 18, at 
53227.
    \94\ 28 CFR 35.108(b). Although DOJ did not include the example 
``pregnancy-related medical conditions'' in its regulatory 
definition of ``physical or mental impairment,'' its inclusion in 
this final rule is consistent with DOJ's explanation that pregnancy-
related medical impairments may be disabilities. See DOJ Final Rule 
to Implement ADAAA, supra note 18, at 53227 (while pregnancy itself 
is not an impairment, a pregnancy-related impairment may meet the 
definition of ``disability'' under any prong--``actual,'' ``record 
of,'' or ``regarded as''). CRC notes that no example on this list 
will be a disability unless it meets all the definitional criteria.
---------------------------------------------------------------------------

    Proposed Sec.  38.4(q)(4) added to the definition of disability a 
new definition for ``major life activities'' that is consistent with 
the provisions in the ADAAA,\95\ and regulations promulgated by the 
EEOC \96\ and now with the DOJ regulations to implement the ADAAA.\97\ 
CRC received two comments supporting this provision and adopts it 
without change in the final rule, except to add ``writing'' to the list 
of major life activities to conform with DOJ's ADA Title II regulations 
to implement the ADAAA, and to make minor technical changes consistent 
with those DOJ regulations.
---------------------------------------------------------------------------

    \95\ 42 U.S.C. 12102(2).
    \96\ 29 CFR 1630.2(i).
    \97\ 28 CFR 35.108(c).
---------------------------------------------------------------------------

    Proposed Sec.  38.4(q)(5) added rules of construction when 
determining whether an impairment ``substantially limits'' an 
individual in a major life activity. CRC received two supportive 
comments from disability advocacy organizations supporting this 
provision and adopts it without change in the final rule, with the 
exception of replacing ``covered entity'' with ``recipient'' in 
proposed Sec.  38.4(q)(5)(i)(C) (renumbered Sec.  38.4(q)(5)(i)(B) in 
the final rule), replacing ``entities'' with ``recipients'' in Sec.  
38.4(q)(5)(ii), and making minor technical changes to conform with 
DOJ's ADA Title II regulations to implement the ADAAA. The order of the 
paragraphs within Sec.  38.4(q)(5) in the final rule was changed to be 
consistent with the paragraph order in DOJ's ADA Title II regulations 
to implement the ADAAA, and to minimize any confusion.
    Proposed Sec.  38.4(q)(6) updated the definition of an individual 
with ``[a] record of such an impairment'' to include an individual that 
has a history of, or has been misclassified as having, a mental or 
physical impairment that substantially limits one or more major life 
activities. This is the same language used by the EEOC in its 
implementing regulations.\98\ The DOJ regulations have identical 
language.\99\ CRC received no comments on this provision and adopts it 
without change in the final rule, except for minor technical changes to 
conform with DOJ's ADA Title II regulations to implement the ADAAA.
---------------------------------------------------------------------------

    \98\ 29 CFR 1630.2(k)(1).
    \99\ 28 CFR 35.108(e)(1).
---------------------------------------------------------------------------

    Proposed Sec.  38.4(q)(7) revised the term ``is regarded as having 
such an impairment'' to conform to the ADAAA.\100\ The new definition 
clarifies that illegal disability discrimination includes 
discrimination ``because of an actual or perceived physical or mental 
impairment.'' CRC received one comment from a coalition of disability 
advocacy groups supporting this provision. In accordance with the other 
changes noted earlier, the term ``covered entity'' is replaced with 
``recipient'' in Sec.  38.4(q)(7)(ii) and (iii). The final rule also 
makes minor technical changes in the text to conform with DOJ's ADA 
Title II regulations to implement the ADAAA. Additionally, the final 
rule makes substantive conforming changes to Sec.  38.4(q)(7)(i) 
(adding the qualifier ``even if the recipient asserts, or may or 
ultimately does establish, a defense to the action prohibited by WIOA 
Section 188 and this part''), and to Sec.  38.4(q)(7)(ii) (adding an 
explanatory sentence regarding the ``transitory and minor'' exception). 
This new language in the final rule is modeled on the language in DOJ's 
ADA Title II

[[Page 87141]]

regulations to implement the ADAAA.\101\
---------------------------------------------------------------------------

    \100\ 42 U.S.C.12102(3).
    \101\ 28 CFR 35.108(f).
---------------------------------------------------------------------------

Employment Practices
    The NPRM made no substantive changes to the definition of 
``employment practices'' in Sec.  38.4(s).
    Comment: A coalition of eighty-six women's, workers', and civil 
rights organizations commended CRC for recognizing, in proposed Sec.  
38.4(s)(6), that covered employment practices include ``deciding rates 
of pay or other forms of compensation.'' Focusing on discrimination 
based on sex, the organizations observed that ``women are still paid 
less than men in nearly every occupation.'' The organizations 
recommended that CRC adopt provisions similar to those in the section 
devoted to compensation in OFCCP's proposed rule Discrimination on the 
Basis of Sex.\102\ In addition, the organizations asked CRC to explain 
that ``factors other than sex relied upon in determining compensation 
must be job-related, consistent with business necessity, and account 
for the entire pay differential''; to ``advise that prior pay matching 
should be a rare occurrence''; and to ``clarify that punitive pay 
secrecy policies that interfere with enforcement of wage discrimination 
protections violate antidiscrimination law.'' Finally, they suggested 
that the rule state that nondiscrimination in compensation based on sex 
is required with regard not only to employees employed in the 
administration of WIOA programs but also to any participants and 
applicants who receive remuneration.
---------------------------------------------------------------------------

    \102\ U.S. Dep't of Labor, Office of Fed. Contract Compliance 
Programs, Discrimination on the Basis of Sex; Proposed Rule, 80 FR 
5246, 5278, Jan. 30, 2015 (hereinafter ``OFCCP Sex Discrimination 
NPRM''); see 41 CFR 60-20.4.
---------------------------------------------------------------------------

    Response: CRC believes that the organizations' suggestions do not 
comport with the structure of this rule. Proposed Sec.  38.4(s) is 
intended only to define ``employment practices'' for the purposes of 
this rule, not to impose substantive nondiscrimination obligations. 
Accordingly, Sec.  38.4(s) is a nonexhaustive list of employment 
practices defining the term as it is used elsewhere in the rule, for 
example, in the enunciation of the employment nondiscrimination 
principle in Sec.  38.18. None of the eight employment practices listed 
in Sec.  38.4(s) are elaborated on in the way the organizations 
suggested CRC do with regard to paragraph (s)(6). Moreover, to the 
extent that the organizations' suggestions are specific to sex 
discrimination, CRC notes that the definition of ``employment 
practices'' proposed in Sec.  38.4(s) is intended to apply throughout 
the rule and is not limited to any particular basis of discrimination. 
Furthermore, where appropriate, the section that focuses on 
discrimination based on sex encompasses the organizations' suggestions 
in the WIOA context, such as Sec.  38.7(c)'s prohibition against 
policies and practices that have a discriminatory effect. Finally, CRC 
reiterates that the scope of this rule regarding employment practices 
is limited to any program or activity that is operated by a recipient, 
including a one-stop partner, to the extent that the employment is in 
the administration of or in connection with programs and activities 
that are financially assisted under WIOA Title I, including those that 
are part of the one-stop delivery system.\103\ For these reasons, CRC 
declines to make the suggested changes to proposed Sec.  38.4(s)(6).
---------------------------------------------------------------------------

    \103\ This limitation is spelled out in Sec.  38.18 of this 
final rule and tracks the provision in Section 188(a)(2) of WIOA, 29 
U.S.C. 3248(a)(2).
---------------------------------------------------------------------------

Governor
    Proposed Sec.  38.4(aa) defined the term ``Governor'' as ``the 
chief elected official of any State, or the Governor's designee.'' CRC 
received one comment on this definition.
    Comment: A State employment agency commented that the proposed 
definition of ``Governor'' is in direct conflict with the WIOA 
statutory definition and therefore in violation of Section 5 of Title 5 
of the United States Code. The commenter recommended that the proposed 
definition be revised to match the statutory definition.
    Response: In response to that comment, CRC revises the regulatory 
definition of Governor to more closely track the parallel portion of 
the statutory definition. This modification is also consistent with 
ETA's definition of ``Governor'' in its final rule implementing 
WIOA.\104\
---------------------------------------------------------------------------

    \104\ 29 CFR 651.10.
---------------------------------------------------------------------------

    CRC, however, retains the language from its definition in the 1999 
and 2015 rules that the term ``Governor'' includes ``the Governor's 
designee.'' This departure from the statutory definition is appropriate 
as the term relates to the nondiscrimination and equal opportunity 
provisions found at 29 CFR part 38. Governors should continue to have 
flexibility to designate an individual to carry out the Governor's 
obligations to ensure all State Programs' compliance with the 
nondiscrimination and equal opportunity obligations of WIOA and this 
part. Accordingly, CRC adopts the definition proposed in Sec.  38.4(aa) 
with the modification noted above.
Individual With a Disability
    Proposed Sec.  38.4(ff) made minor changes to the definition of 
``individual with a disability.'' That provision, consistent with the 
1999 and 2015 rules, mostly defined the term by listing examples of 
conditions that the ADA excludes from the definition of ``individual 
with a disability.'' CRC proposed changes to be consistent with the 
ADAAA and the implementing regulations issued by the EEOC \105\ and now 
with regulations issued by the DOJ.\106\
---------------------------------------------------------------------------

    \105\ 29 CFR 1630.3.
    \106\ 28 CFR 35.108(g).
---------------------------------------------------------------------------

    Comment: Two commenters expressed general support for the proposed 
rule's definition of an ``individual with a disability.'' However, 
several commenters, in nearly identical comments, encouraged CRC to 
remove the explicit proposed exclusion of ``transvestism, 
transsexualism, or gender dysphoria not resulting from physical 
impairments.'' Their comments were particularly focused on the gender 
dysphoria exclusion. One professional association reasoned that 
current, mental health nomenclature includes these conditions as part 
of the spectrum of valid mental health conditions and their exclusion 
is a legacy of misunderstanding of gender-related concerns. Several 
advocacy organizations recognized the language as consistent with the 
ADA but nonetheless recommended the deletion of this language to 
reflect the evolving scientific evidence suggesting that gender 
dysphoria may have a physical basis and that the terms ``disability'' 
and ``physical impairment'' should be read broadly.
    Response: The exclusion of transvestism and transsexualism from the 
definition of disability is a statutory exclusion under the ADA\107\ 
and Section 504,\108\ and it is beyond CRC's scope of authority to 
remove this exclusion.\109\ With respect to gender dysphoria, CRC notes 
that it proposed to use that term because the fifth edition of the 
Diagnostic and Statistical Manual of Mental Disorders replaced the 
diagnostic term ``gender identity disorder'' with the term ``gender 
dysphoria.'' However, CRC notes that the precise term used in the ADA 
and Section 504 is ``gender identity

[[Page 87142]]

disorders not resulting from physical impairments.'' \110\ The 
commenters' reasoning for objecting to the exclusion of gender 
dysphoria was that modern medical consensus considers gender dysphoria 
as resulting from physical impairments. In response to these comments 
and in accordance with the ADA and Section 504, CRC revises Sec.  
38.4(ff) in the final rule to use the exact statutory term \111\ rather 
than ``gender dysphoria.'' Individuals with gender identity disorders 
resulting from physical impairments may be covered under the definition 
of an individual with a disability (assuming they meet the other 
definitional criteria).
---------------------------------------------------------------------------

    \107\ 42 U.S.C. 12211(b)(1).
    \108\ 29 U.S.C. 705(20)(F)(i).
    \109\ However, as discussed in other sections of this rule, 
Section 188's prohibition of discrimination on the basis of sex 
includes discrimination because of transgender status or gender 
identity. See Sec.  38.7(a).
    \110\ 42 U.S.C. 12211(b)(1) (ADA); 29 U.S.C. 705(20)(F)(i) 
(Section 504).
    \111\ See 42 U.S.C. 12211(b)(1) (ADA); 29 U.S.C. 705(20)(F)(i) 
(Section 504).
---------------------------------------------------------------------------

Limited English Proficient (LEP) Individual
    In Sec.  38.4(hh), the final rule includes a definition for 
``limited English proficient (LEP) individual.'' The proposed 
definition of ``limited English proficient (LEP) individual'' was ``an 
individual whose primary language for communication is not English and 
who has a limited ability to read, speak, write and/or understand 
English.'' As set forth in the proposed rule, this definition was added 
because failure to provide language assistance to limited English 
proficient individuals may be a form of unlawful national origin 
discrimination.\112\ The term is used elsewhere in the final rule, in 
Sec.  38.9 defining national origin discrimination as including 
discrimination based on limited English proficiency. This definition is 
consistent with decisions interpreting the scope of national origin 
discrimination under Title VI \113\ and regulations interpreting 
national origin-based discrimination,\114\ and has been adopted from 
those DOJ regulations implementing Title VI to ensure consistency.
---------------------------------------------------------------------------

    \112\ Lau v. Nichols, 414 U.S. 563 (1974) (Supreme Court found 
recipient's denial of equal education opportunities to a group of 
non-English speakers was national origin discrimination in violation 
of Title VI and its regulations); see also sources cited supra note 
26.
    \113\ Sandoval v. Hagan, 197 F.3d 484, 510-11 (11th Cir. 1999) 
(holding that English-only policy for driver's license applications 
constituted national origin discrimination under Title VI), rev'd on 
other grounds, 532 U.S. 275 (2001); Almendares v. Palmer, 284 F. 
Supp. 2d 799, 808 (N.D. Ohio 2003) (holding that failure to ensure 
bilingual services in a food stamp program could constitute a 
violation of Title VI); Pabon v. Levine, 70 FRD. 674, 677 (S.D.N.Y. 
1976) (citing Lau, denying summary judgment when LEP unemployment 
benefits claimaints alleged a state labor agency failed to provide 
language assistance services in violation of Title VI and its 
implementing regulations).
    \114\ 28 CFR 42.104 (discrimination prohibited by DOJ Title VI 
regulations); 10 CFR 1040.1 (Department of Energy regulations 
mirroring DOJ Title VI regulations).
---------------------------------------------------------------------------

    Several advocacy organizations expressed support for the proposed 
definition of ``limited English proficient (LEP) individual'' to ensure 
that it is consistent with legal decisions interpreting the scope of 
national origin discrimination under Title VI of the Civil Rights Act 
of 1964 and the DOJ regulations implementing Title VI. Further, the 
commenters stated that the proposed definition will help maximize 
access to WIOA Title I employment and training programs for job seekers 
and workers that are LEP. CRC's response to one comment is addressed 
below.
    Comment: One advocacy organization commented that it is not clear 
from the definition of LEP whether this includes individuals with 
sensory impairments, who are Deaf or hard of hearing and communicate 
using American Sign Language, have speech impairments, or who are blind 
or have visual impairments.
    Response: Proposed Sec.  38.4(hh) was not intended to apply to 
individuals with sensory impairments, who are Deaf or hard of hearing 
and communicate using American Sign Language, have speech impairments, 
or who are blind or have visual impairments, and such individuals are 
not included in the definition of an LEP individual. The requirements 
for ensuring effective communication with individuals with disabilities 
are explained in Sec.  38.15.
On-the-Job Training (OJT)
    Proposed Sec.  38.4(mm) retained the language from the 1999 and 
2015 rules, which defined ``on-the-job training'' and received no 
comments regarding its definition. In the definition of OJT in Sec.  
38.4(mm), CRC makes a technical correction to match the maximum wage 
rate reimbursement specified by WIOA.
Other Power-Driven Mobility Device
    Proposed Sec.  38.4(nn) added a definition for ``other power-driven 
mobility device.'' This definition mirrors the definition in the DOJ 
ADA Title II regulations \115\ and encompasses additional mobility 
devices, such as self-balancing scooters, which are increasingly used 
by individuals with mobility impairments.
---------------------------------------------------------------------------

    \115\ 28 CFR 35.104.
---------------------------------------------------------------------------

    Comment: CRC received two comments regarding this new definition. 
One comment was from a coalition of disability advocacy groups that 
expressed general support for the definition. The second comment was 
from a state-based disability organization that recommended a revision 
in the proposed definition to accommodate future technology advances. 
Specifically, the commenter suggested that CRC add ``motors, or methods 
of propulsion,'' so that the first part of the definition reads: 
``Other power-driven mobility device means any mobility device powered 
by batteries, fuel, or other engines, motors, or methods of propulsion 
. . . .''
    Response: CRC agrees with the second commenter that the definition 
should be revised to allow for future technology advances, but believes 
that the language suggested by the commenter may be too limiting. 
Therefore, CRC has revised the proposed definition in the final rule to 
add ``or by other similar means'' after the list of power sources for 
the devices.
Programmatic Accessibility
    Since WIOA requires recipients to comply with this rule and the 
applicable provisions of the ADA regarding the physical and 
programmatic accessibility of facilities, programs, services, 
technology, and materials, proposed Sec.  38.4(tt) added a definition 
for ``programmatic accessibility.''
    Comment: A local workforce agency commented that the distinction 
between physical and programmatic accessibility is well-defined and 
specific, providing a clear foundation that will strengthen recipients' 
ability to guarantee that their programs and services are both 
physically and programmatically accessible for individuals with 
disabilities. CRC received a comment from a coalition of disability 
advocacy organizations that requested adding the words ``fully'' and 
``equally'' in the proposed definition of ``programmatic 
accessibility'' to emphasize that the requirement should direct 
recipients to ``put program beneficiaries and participants with 
disabilities in the position they would be in if they did not have 
disabilities,'' rather than just being ``helpful.''
    Response: The definition of ``programmatic accessibility'' in Sec.  
38.4(tt) is sufficient as proposed. It is taken from the 2005 Senate 
Health, Education, Labor, and Pensions Committee Report on WIA 
reauthorization.\116\ It is not necessary to add ``equally'' or 
``fully,'' because Sec.  38.12(a) explains the opportunities recipients 
must provide to individuals with disabilities, including any aid, 
benefit, service, or training that is equal to, or as effective as, 
that provided to others (e.g., the opportunity to obtain the same 
result, benefit, or level of

[[Page 87143]]

achievement). For these reasons, CRC declines to make the suggested 
changes to proposed Sec.  38.4(tt).
---------------------------------------------------------------------------

    \116\ S. Rep. No. 109-134, 2005 WL 2250857, at *11 (2005).
---------------------------------------------------------------------------

Qualified Individual With a Disability
    Proposed Sec.  38.4(ww) revised a portion of the definition of 
``qualified individual with a disability'' to match the definition in 
the EEOC regulations implementing the ADAAA.\117\ CRC received one 
comment from a coalition of disability organizations supporting the 
proposed definition, and Sec.  38.4(ww) is adopted as proposed.
---------------------------------------------------------------------------

    \117\ 29 CFR 1630.2(m).
---------------------------------------------------------------------------

Qualified Interpreter
    Proposed Sec.  38.4(xx) amended the existing definition of 
``qualified interpreter'' to reflect the availability of new 
technologies, stating that interpreting services may be provided 
``either in-person, through a telephone, a video remote interpreting 
(VRI) service or via internet, video, or other technological methods.'' 
The revision also delineated the skills and abilities that an 
individual must possess in order to provide interpreter services for an 
individual with a disability.
    Comment: CRC received one comment from a coalition of disability 
advocacy organizations concerned that interpreters should ``have a 
particular level of expertise in the specific jargon being used.'' The 
commenter requested that the definition of qualified interpreter take 
into consideration both ``applicable state law governing licensure of 
interpreters,'' as well as ``the qualification of the interpreter for 
the particular field of employment in any given situation.''
    Response: A qualified interpreter is defined as an interpreter who 
is able to interpret ``effectively, accurately, and impartially.'' The 
interpreter must also be able to interpret ``both receptively and 
expressively, using any necessary specialized vocabulary.'' 
Accordingly, Sec.  38.4(xx) already addresses the commenters' concern 
about an interpreter's ability to use relevant jargon or to otherwise 
effectively and accurately understand and interpret communications 
regarding a particular field of employment. On the other hand, 
possessing State certification may or may not indicate that an 
individual meets the regulatory criteria. We therefore decline to 
incorporate State standards into the regulation. The most important 
factor is whether the interpreter can facilitate effective, accurate, 
and impartial communication and therefore meets the requirements 
outlined in the regulation. For these reasons, CRC declines to make the 
suggested changes.
    In Sec.  38.4(xx)(2), CRC proposed a definition of ``qualified 
interpreter for an individual who is limited English proficient.'' The 
proposed Sec.  38.4(xx)(2) was taken from the DOL LEP Guidance and 
refers to an individual who demonstrates expertise in and ability to 
communicate information accurately in both English and in the other 
language (into which English is being interpreted) and to identify and 
employ the appropriate mode of interpreting, such as consecutive, 
simultaneous, or sight translation.\118\
---------------------------------------------------------------------------

    \118\ DOL LEP Guidance, supra note 28, at 32296.
---------------------------------------------------------------------------

    Several advocacy organizations expressed support for the proposed 
definition of ``qualified interpreter'' and the definition of 
``qualified interpreter for an individual who is LEP'' within Sec.  
38.4(xx)(2). The commenters stated that the proposed definitions 
properly acknowledge that new technology has expanded the availability 
of interpretation services, providing a range of methods for regulated 
entities to use to meet their responsibilities under the regulations. 
Furthermore, the commenters noted that the definitions help ensure that 
job seekers and workers who are LEP have access to quality 
interpretation by describing the quality of the interpreter as 
effective, accurate, impartial, expressive, and using necessary 
vocabulary. The commenters stated that this characterization of quality 
was necessary to disallow the use of Web sites or services that only 
provide online translation services (which may be inaccurate), and to 
discourage the use of children or family members or other untrained 
individuals as interpreters.
Reasonable Accommodation
    Proposed Sec.  38.4(yy) revised the definition of ``reasonable 
accommodation'' to add a new paragraph stating that the provision of 
reasonable accommodations is not required for individuals who are only 
``regarded as'' having a disability. This provision is consistent with 
the ADAAA \119\ and regulations issued by the EEOC \120\ and by the DOJ 
\121\ implementing the ADAAA.
---------------------------------------------------------------------------

    \119\ 42 U.S.C. 12101 et seq.
    \120\ 29 CFR 1630.9(e).
    \121\ 28 CFR 35.108(f)(7)(ii).
---------------------------------------------------------------------------

    Comment: CRC received a few comments generally supporting this 
provision from a coalition of disability advocacy organizations. CRC 
received one comment from a State agency asking that the term 
``regarded as having a disability'' be defined or that examples be 
provided to add clarification to the meaning of the phrase. The 
commenter requested that the term ``covered entity'' be defined. The 
commenter also suggested that the term ``covered entity'' be replaced 
with the term ``recipient.''
    Response: We agree that it is preferable to use the term 
``recipient,'' defined in Sec.  38.4(zz), instead of ``covered 
entity,'' for which there is no definition in this part, and have 
adopted that change throughout the rule.\122\ Regarding the commenter's 
request that we define ``regarded as having a disability,'' or provide 
examples, we note that the definition of the term ``disability'' 
includes ``being regarded as having such an impairment,'' and that the 
phrase ``is regarded as having such an impairment'' is defined in Sec.  
38.4(q)(7). CRC revises Sec.  38.4(yy)(4) of the rule consistent with 
that wording to refer to the applicable definitions for the ``actual 
disability,'' ``record of,'' and ``regarded as'' prongs. Therefore, 
examples are unnecessary.
---------------------------------------------------------------------------

    \122\ CRC is replacing ``covered entity'' with ``recipient'' in 
two sections: in the definition of ``disability'' in Sec.  38.4(q) 
and in the definition of ``reasonable accommodation'' in Sec.  
38.4(yy).
---------------------------------------------------------------------------

    For the sake of consistency, CRC places quotation marks around the 
term ``reasonable accommodation'' in Sec.  38.4(yy)(2).
Recipient
    Proposed Sec.  38.4(zz) defined the term ``recipient'' as any one-
stop partner listed in section 121(b) of WIOA and any ``entity to which 
financial assistance under Title I of WIOA is extended, directly from 
the Department or through the Governor or another recipient (including 
any successor, assignee, or transferee of a recipient).'' Section 
38.4(zz) also proposed a non-exhaustive list of examples of recipients.
    Comment: A State labor agency commented that the proposed 
definition of ``recipient'' significantly expands the existing 
definition and will cause confusion because it is not in accordance 
with current OMB guidance. The commenter recommended that the 
Department continue to rely on the Office of Management and Budget 
(OMB) definition.
    Response: Although the definition of ``recipient'' in this rule 
differs from the definition of ``recipient'' in the Uniform 
Administrative Requirements, Cost Principles, and Audit Requirements 
for Federal Awards at 2 CFR part 200 (``Uniform Guidance''), the 
definition of recipient in this rule does not expand upon or adopt the 
definition of ``recipient'' in the Uniform Guidance

[[Page 87144]]

because this rule and the Uniform Guidance are two different rules with 
different applicability and different purposes. CRC chooses to retain 
its definition of ``recipient'' because CRC has a statutory duty to 
enforce WIOA Section 188 with respect to ``programs and activities 
financially assisted in whole or in part under'' WIOA. Coverage under 
Section 188 and this regulation is not dependent on whether an entity 
is a ``pass-through entity'' as defined in 2 CFR 200.74, a 
``recipient'' as defined in 2 CFR 200.86, or a ``subrecipient'' as 
defined in 2 CFR 200.93. Instead, coverage under Section 188 and this 
regulation depends on whether an entity is a ``recipient,'' as defined 
in Sec.  38.4(zz), that receives financial assistance under Title I of 
WIOA, as defined in Sec.  38.4(x) and (y). Moreover, the definition of 
``recipient'' in Sec.  38.4(zz) is consistent with the definition of 
``recipient'' in the 1999 and 2015 rules. Therefore we decline to amend 
the definition of ``recipient'' as suggested.
Service Animal
    Proposed Sec.  38.4(fff) added a definition for ``service animal.'' 
This provision is based on the DOJ ADA Title II regulations.\123\
---------------------------------------------------------------------------

    \123\ See 28 CFR 35.104. The EEOC has not addressed whether this 
definition applies to employers and employment agencies covered 
under Title I of the ADA or Section 501 of the Rehabilitation Act.
---------------------------------------------------------------------------

    Comment: Two disability advocacy organizations expressed support 
for the proposed definition of ``service animal,'' reasoning that it is 
consistent with ADA definitions that exclude exotic animals from 
protected coverage. The commenter noted that the organization has 
received complaints about individuals who identify exotic animals as 
service animals, which the commenters believe draws unnecessary 
attention to the individual rather than performing an actual service.
    However, a few commenters requested revisions to the definition. An 
advocacy organization recommended that the definition of ``service 
animal'' be expanded to include emotional support animals to be 
consistent with language in the Pennsylvania Human Relations Act and 
the Federal Fair Housing Act. Another advocacy organization suggested 
that CRC eliminate or explain the differences between CRC's and DOJ's 
language regarding emotional support and the exclusion of miniature 
horses as service animals. Similarly, a state-based organization 
serving individuals with developmental disabilities recommended that 
the definition of ``service animal'' be revised to include miniature 
horses. The commenter noted that, even though current ADA requirements 
recognize dogs only as service animals, it also permits the use of a 
miniature horse as a service animal in certain circumstances.
    Response: In the interest of uniformity, our definition of a 
service animal under Sec.  38.4(fff) is limited to dogs, consistent 
with the Department of Justice's 2010 ADA Title II regulations.\124\ 
While another section of the DOJ Title II regulations sets out 
standards for the reasonable modification of policies, practices, and 
procedures to permit miniature horses to be utilized in certain 
circumstances and under specific criteria, this is different from 
including miniature horses in the definition of a ``service animal.''
---------------------------------------------------------------------------

    \124\ See 28 CFR 35.104.
---------------------------------------------------------------------------

    Our definition of a service animal, consistent with the DOJ 2010 
ADA Title II regulations, excludes animals that are only used to 
provide emotional support, well-being, comfort, or companionship, but 
does include dogs that can perform work or tasks that are directly 
related to an individual's disability, including helping persons with 
psychiatric and neurological disabilities. We believe that it is 
appropriate to follow the DOJ Title II regulations in restricting 
service animals to dogs that can perform specific assistive tasks; many 
of the same entities subject to this rule are also subject to the DOJ 
regulations. However, not all of those entities are subject to the 
Pennsylvania Human Relations Act or the federal Fair Housing Act. We 
believe permitting emotional support animals under a single State 
statute,\125\ or under the Fair Housing Act as a reasonable 
accommodation,\126\ is fundamentally different than classifying such 
animals as service animals. Accordingly, those laws are not used as the 
basis for the definition of ``service animal'' in the final rule.
---------------------------------------------------------------------------

    \125\ The Pennsylvania Human Relations Act does not use the term 
``service animal'' but uses the term ``guide or support animals,'' 
without further definition. See 43 Pa. Cons. Stat. sections 952, 
955.
    \126\ See U.S. Dep't of Housing & Urban Dev., Service Animals 
and Assistance Animals for People with Disabilities in Housing and 
HUD-Funded Programs (FHEO-2013-01, Apr. 25, 2013), available at 
http://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf (classifying requests for 
emotional support animals as reasonable accommodation requests, 
rather than a service animal).
---------------------------------------------------------------------------

Video Remote Interpreting (VRI) Service
    Proposed Sec.  38.4(sss) added a definition for ``video remote 
interpreting (VRI) service'' that mirrors the definition used by DOJ in 
its regulations implementing Title II of the ADA.\127\
---------------------------------------------------------------------------

    \127\ See 28 CFR 35.104.
---------------------------------------------------------------------------

    Comment: A coalition of organizations representing the interests of 
individuals with disabilities commented that the proposed definition of 
``video remote interpreting'' (VRI) is inadequate and vague because it 
could ostensibly allow for a smartphone to be used to Skype the 
interpreter, reasoning that such a scenario is problematic as the 
effectiveness of video remote interpreting depends greatly on the deaf 
individual's ability to view the VRI interpreter on a sufficient size 
screen and the clarity of the signing on the screen being affected by 
signal strength. The coalition recommended that all covered entities 
prioritize the use of on-site interpreters, and that use of VRI be 
limited to brief interactions or where a qualified interpreter is not 
available.
    Response: The current language, which mirrors the DOJ ADA Title II 
regulations, is sufficient. As stated in Sec.  38.15, which parallels 
the language of the ADA, a recipient must take appropriate steps to 
ensure that communications with individuals with disabilities are as 
effective as communications with others. A recipient must furnish 
appropriate auxiliary aids and services where necessary to accomplish 
this. The type of auxiliary aid or service necessary to ensure 
effective communication varies in accordance with the method of 
communication used by the individual, the nature, length, and 
complexity of the communication involved; and the context in which the 
communication is taking place. In determining what type of auxiliary 
aid and service is necessary, a recipient must give primary 
consideration to the request of an individual with a disability. In 
addition, with respect to video remote interpreting, there are 
particular requirements under Sec.  38.15(a)(4) that address the speed, 
size, and quality of the service, which would in many cases limit the 
use of a smart phone for VRI. For these reasons, CRC declines to make 
the suggested changes to proposed Sec.  38.4(sss).
Vital Information
    In Sec.  38.4(ttt), the proposed rule included a definition for 
``vital information.'' The proposed rule used the term ``vital 
information'' to describe the type of information that recipients must: 
(1) Translate in advance of encountering any specific LEP individual, 
pursuant to Sec.  38.9(g)(1); or (2) translate (in writing) or 
interpret (verbally) when specific LEP

[[Page 87145]]

individuals are encountered, pursuant to Sec.  38.9(g) and (h). The 
proposed rule gave a nonexhaustive list of examples of documents 
containing vital information. CRC sought comments on this definition. 
The comments and our responses regarding the definition of ``vital 
information'' are set forth below:
    Comment: Several advocacy organizations supported the proposed 
definition of ``vital information'' specifically because the increased 
usage of Web sites or other virtual services to provide employment and 
training information should not preclude job seekers or workers who are 
LEP from accessing those services. A local workforce agency supported 
the proposed definition of ``vital information,'' reasoning that it 
``is precise [and] provides a clear description of the importance of 
providing program information in various formats thereby enabling 
recipients to comply with WIOA regulations.'' A State labor agency did 
not support including this definition. The commenter stated that it 
would increase the burden of one-stop centers and partners to translate 
materials into multiple languages and would constitute an unfunded 
mandate.
    Response: We acknowledge that compliance with Sec.  38.9 may impose 
some limited burdens on recipients. Moreover, these burdens are 
outweighed by the benefits that Sec.  38.9 will generate for 
individuals with limited English proficiency by making them aware, in 
their preferred languages, of information they need to understand in 
order to obtain, and to understand how to obtain, the aid, benefits, 
services, and training offered by WIOA Title I programs and 
activities.\128\ We believe including the definition of vital 
information provides clear direction for recipients so that they can 
determine what information must be translated or orally interpreted for 
LEP individuals in order to meet their obligations under this part and 
WIOA Section 188. The definition builds upon and is consistent with the 
discussion of vital written materials and documents contained in the 
DOL LEP Guidance.\129\ For these reasons, CRC declines to make any 
modifications to the definition of vital information.
---------------------------------------------------------------------------

    \128\ Cf. HHS Nondiscrimination Final Rule, supra note 18, at 
31401 (recognizing that in the health context the benefits of 
translating information for LEP individuals outweigh the burdens on 
covered entities).
    \129\ DOL LEP Guidance, supra note 28, at 32298.
---------------------------------------------------------------------------

Wheelchair
    In Sec.  38.4(uuu), the proposed rule added a definition for 
``wheelchair'' to distinguish it from other power driven mobility 
devices. The new definition mirrors the definition in the DOJ ADA Title 
II regulations.\130\ CRC received one comment in support of this 
provision from a coalition of disability advocacy organizations and 
adopts it as proposed.
---------------------------------------------------------------------------

    \130\ 28 CFR 35.104.
---------------------------------------------------------------------------

Summary of Regulatory Changes
    For the reasons set forth above and in the NPRM, and considering 
the comments received, CRC adopts the definitions proposed in Sec.  
38.4 with the following modifications: reorganizing paragraph (b); 
numerous edits in paragraph (q) to conform with DOJ's ADA Title II 
regulations to implement the ADAAA; in paragraphs (q) and (yy), 
changing all instances of ``covered entity'' (or ``covered entities'') 
to ``recipient'' (or ``recipients''); in paragraph (aa), revising the 
definition of ``Governor'' to track the statutory definition more 
closely; in paragraph (hh), revising the definition of ``limited 
English proficient (LEP) individual'' to clarify its connection to 
national origin discrimination; in paragraph (mm), revising the maximum 
wage rate reimbursement to match that in WIOA; in paragraph (nn), 
adding ``by other similar means''; and in paragraph (yy)(4), adding 
references to the applicable definitions for the ``actual disability,'' 
``record of,'' and ``regarded as'' prongs.
General Prohibitions on Discrimination Sec.  38.5
    Proposed Sec.  38.5 set forth generally the discrimination 
prohibited by WIOA Section 188 and this part: ``No individual in the 
United States may, on the basis of race, color, religion, sex, national 
origin, age, disability, political affiliation or belief, and for 
beneficiaries, applicants, and participants only, citizenship or 
participation in any WIOA Title I-financially assisted program or 
activity, be [subjected to certain adverse actions].''
    Comment: An individual commenter cited the regulatory language 
``because of race, color, religion, sex, national origin, age, 
disability, political affiliation or belief . . . '' and recommended 
that the word ``belief'' be removed because it can be misunderstood in 
context with the other words.
    Response: CRC appreciates the commenter's concern that the 
regulation text be clearly understood. We believe the word ``and'' 
after the word ``belief'' is inconsistent with the intended meaning of 
the text, and may have made it unclear that the word ``belief'' is not 
an independent protected category, such as race, but is part of the 
protected basis of ``political affiliation or belief.'' CRC declines 
the commenter's suggestion to delete the word ``belief'' from Sec.  
38.5, because the language ``political affiliation or belief'' is 
derived directly from WIOA Section 188. However, to clarify that 
``belief'' is not an independent basis, and to more clearly and 
consistently identify all of the bases on which discrimination is 
prohibited, CRC makes the following technical changes as appropriate in 
this section and in Sec. Sec.  38.1, 38.4(uu), 38.6, 38.10, 
38.25(a)(1)(i)(A), and 38.42(a): Adding both a comma and the words 
``applicants, and participants'' following ``beneficiaries''; repeating 
``on the basis of'' or ``based on'' before ``citizenship''; and making 
minor technical changes to the punctuation and conjunctions in the list 
of bases. For the same reasons, CRC intends no substantive changes by 
making these revisions.
Specific Discriminatory Actions Prohibited on Bases Other Than 
Disability Sec.  38.6
    Proposed Sec.  38.6 discussed the types of discriminatory actions 
prohibited by WIOA and this part whenever those actions are taken 
because of the protected bases listed in Section 188, with the 
exception of disability. In addition, this section replaced the term 
``ground'' with the term ``basis.''
    Comment: An advocacy organization pointed out that the proposed 
prohibitions on sex discrimination include a prohibition on job 
postings that seek individuals of a particular sex. The commenter urged 
a similar prohibition on job postings that seek individuals of a 
particular age, or contain age-related parameters such as ``recent 
graduates.'' The commenter also expressed concern that older workers 
have been systematically shortchanged in the workforce development 
system. The commenter warned that older workers are often diverted or 
referred to other programs, relegated to self-service because of 
understaffing, not served because the performance criteria discourage 
helping the hard-to-serve, or otherwise denied equal access to 
meaningful engagement that would qualify them to be ``participants.'' 
The commenter concluded that disparate impact discrimination based on 
age is a ``new'' legal development that should be considered as 
bolstering the case for increased attention to disparate impact based 
on age in the delivery of career services to older jobseekers.
    Response: As discussed below in connection with Sec.  38.7(b)(5), 
CRC is

[[Page 87146]]

removing the across-the-board prohibition on ``the use of gender-
specific terms for jobs (such as `waitress')'' because the EEOC permits 
gender-specific job titles in advertisements in the rare instance in 
which sex is a bona fide occupational qualification. The use of such 
language in employment opportunity advertisements and other recruitment 
practices is suspect, but is not a per se violation, and no violation 
should be found when it is accompanied by prominent language that 
clearly indicates the intent to include applicants or prospective 
applicants of both sexes. Age discrimination cases are also fact 
specific. Language that is age referential, or that would discourage 
older workers, can be legal if based on a bona fide occupational 
qualification or a reasonable factor other than age. Accordingly, CRC 
declines to prohibit outright the use of all potentially age-related 
parameters.
    While the rule does not have a separate section devoted to 
addressing age discrimination only, age is a covered basis for 
prohibited discrimination. For example, the provisions of Sec.  38.6 
would prohibit, on a case-by-case basis, job postings shown to be 
discriminatory due to age, as well as the other scenarios raised by the 
commenter, whenever they are the result of age discrimination. We 
disagree with the commenter's suggestion that CRC should give increased 
attention to any particular type of discrimination. Therefore CRC 
declines to adopt the commenter's recommendation.
    Comment: An advocacy organization suggested that there should be 
``[n]o discrimination or preference on the basis of race, ethnicity, 
sex, etc.,'' including ``any use of goals and timetables to remedy 
underrepresentation and the like.'' The commenter also opposed the 
disparate impact approach to civil rights enforcement and favored only 
prohibition of disparate treatment.
    Response: With respect to the issue of ``goals and timetables to 
remedy underrepresentation and the like,'' CRC believes that the 
commenter is requesting that the final rule include neither specific 
numerical goals for hiring persons because of protected categories, nor 
specific numerical goals for offering any aid, benefit, service, or 
training on the basis of protected categories. The rule contains no 
such requirements. Instead, the final rule addresses 
underrepresentation by requiring, among other things, recipients to 
designate an Equal Opportunity Officer,\131\ collect and monitor equal 
opportunity data to ensure compliance with this part,\132\ and conduct 
affirmative outreach to certain targeted groups.\133\
---------------------------------------------------------------------------

    \131\ See Sec. Sec.  38.28 and 38.29.
    \132\ See Sec. Sec.  38.31 and 38.41.
    \133\ See Sec.  38.40.
---------------------------------------------------------------------------

    Regarding the question of disparate impact discrimination, CRC 
disagrees that the final rule should only prohibit intentional 
discrimination--that is, disparate treatment discrimination. WIOA 
authorizes the Secretary to promulgate nondiscrimination regulations 
``that are consistent with the Acts referred to in subsection (a)(1)'' 
of Section 188.\134\ Under federal statutes that prohibit 
discrimination, federal agencies have the authority to issue and 
enforce regulations prohibiting policies and practices that have 
disparate impacts on protected classes.\135\ It is particularly 
important that federal agencies such as CRC enforce prohibitions 
against disparate impact discrimination because victims themselves may 
be unable to enforce agencies' disparate impact regulations.\136\ CRC 
emphasizes that it will not deem unlawful a neutral policy or practice 
that has a disparate impact on a protected class if the recipient 
demonstrates that the policy or practice has a substantial legitimate 
justification and CRC cannot identify an alternative policy or practice 
that may be comparably effective with less disparate impact.\137\
---------------------------------------------------------------------------

    \134\ 29 U.S.C. 3248(e).
    \135\ See, e.g., Alexander v. Choate, 469 U.S. 287, 293-94 
(1985) (explaining that the Court had previously held, in Guardians 
Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983), ``that Title VI 
[which does not itself contain a disparate impact provision] had 
delegated to the agencies in the first instance the complex 
determination of what sorts of disparate impacts upon minorities 
constituted sufficiently significant social problems, and were 
readily enough remediable, to warrant altering the practices of the 
federal grantees that had produced those impacts'').
    \136\ Alexander v. Sandoval, 532 U.S. 275, 293 (2001) (Title 
VI); see Memorandum from Loretta King, Acting Assistant Attorney 
General, U.S. Dep't of Justice, Civil Rights Div., to Federal Agency 
Civil Rights Directors and General Counsels, Strengthening of 
Enforcement of Title VI of the Civil Rights Act of 1964 (July 10, 
2009), available at http://www.lep.gov/titlevi_enforcement_memo.pdf.
    \137\ N.Y. Urban League, Inc. v. New York, 71 F.3d 1031, 1036 
(2d Cir. 1995); Ga. State Conf. of Branches of NAACP v. Georgia, 775 
F.2d 1403, 1417 (11th Cir. 1985); see generally Texas Dep't of 
Housing & Cmty. Affairs v. Inclusive Communities Project, 135 S. Ct. 
2507, 2522-23 (2015).
---------------------------------------------------------------------------

Discrimination Prohibited Based on Sex Sec.  38.7
    Proposed Sec.  38.7(a) stated that discrimination in WIOA Title I-
financially assisted programs and activities based on pregnancy, 
childbirth, and related medical conditions is a form of unlawful sex 
discrimination. CRC received only supportive comments on this inclusion 
and adopts it as proposed in the final rule.
    Proposed Sec.  38.7(a) further stated that discrimination based on 
transgender status or gender identity \138\ is a form of unlawful sex 
discrimination. CRC received comments supporting and opposing this 
inclusion.
---------------------------------------------------------------------------

    \138\ A transgender individual is an individual whose gender 
identity is different from the sex assigned to that person at birth. 
Throughout this final rule, the term ``transgender status'' does not 
exclude gender identity, and the term ``gender identity'' does not 
exclude transgender status.
---------------------------------------------------------------------------

    Comments: CRC received eleven comments in support of the express 
inclusion of transgender status and gender identity in the definition 
of ``sex.'' The commenters were one coalition of eighty-six women's, 
workers', and civil rights organizations; a group of ten advocacy 
organizations and a union; six individual advocacy organizations; two 
health organizations; and one individual. The organizational commenters 
emphasized that the principle that discrimination on the basis of 
gender identity or transgender status constitutes discrimination on the 
basis of sex is well supported by Title VII and Title IX case law.
    CRC also received comments opposing the recognition of 
discrimination based on transgender status or gender identity as a form 
of unlawful sex discrimination. These comments were submitted by one 
group of nine religious organizations, one employer, one State 
department of labor, and numerous individuals.
    The religious organizations asserted that ``the inclusion of 
transgender status and gender identity in the proposed regulations is 
an erroneous interpretation of the law.'' They stated that Section 188 
does not provide a textual basis for including transgender status and 
gender identity in CRC's rule because the statute uses the term 
``sex,'' which they stated is ordinarily defined as ``being male or 
female.'' They further asserted that most courts have held that 
discrimination on the basis of transgender status or gender identity is 
not covered by federal statutes prohibiting sex discrimination. The 
religious organizations also pointed to congressional efforts to enact 
legislation that would prohibit federally financially assisted programs 
and activities from discriminating on the basis of gender identity, 
portraying such efforts as

[[Page 87147]]

evidence that federal law does not already forbid such 
discrimination.\139\
---------------------------------------------------------------------------

    \139\ In the 114th Congress (2015-2016), identical ``Equality 
Act'' bills were introduced in the Senate (S. 1858) and House (H.R. 
3185) on July 23, 2015. The bills would, inter alia, prohibit 
programs and activities receiving federal financial assistance from 
discriminating against persons based on sex, sexual orientation, or 
gender identity. U.S. Library of Congress, Congress.gov, available 
at https://www.congress.gov/bill/114th-congress/senate-bill/1858, 
https://www.congress.gov/bill/114th-congress/house-bill/3185.
---------------------------------------------------------------------------

    The State department of labor that opposed this portion of proposed 
Sec.  38.7(a) asserted that ``there is no clear legal consensus as to 
whether Title VII's prohibition against sex discrimination applies to 
discrimination on the basis of gender orientation or gender identity.'' 
The employer and numerous individual commenters asserted that this 
provision of CRC's rule would undermine traditional values and grant 
special protections to LGBT people. Many individual commenters further 
expressed skepticism or derision regarding the existence of transgender 
individuals and individuals who do not identify as male or female.
    Response: As discussed above in the main preamble and as supported 
by numerous commenters, CRC finds the prohibition of discrimination on 
the basis of gender identity or transgender status as a form of sex 
discrimination to be consistent with case law under Title VII and Title 
IX.\140\
---------------------------------------------------------------------------

    \140\ See, e.g., Barnes v. Cincinnati, 401 F.3d 729, 739 (6th 
Cir. 2005); Smith v. Salem, 378 F.3d 566, 574 (6th Cir. 2004); Doe 
v. Univ. of Mass.-Amherst, No. CV 14-30143-MGM, 2015 WL 4306521, at 
*6 n.2 (D. Mass. July 14, 2015); Schroer v. Billington, 577 F. Supp. 
2d 293 (D.D.C. 2008); Miles v. N.Y. Univ., 979 F. Supp. 248, 249-50 
(S.D.N.Y. 1997); see also Macy v. Dep't of Justice, Appeal No. 
0120120821, 2012 WL 1435995, at *7 (EEOC Apr. 20, 2012), available 
at http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt. The contrary approach taken 
in the older cases cited by opposing commenters ``has been 
eviscerated by Price Waterhouse.'' Smith, 378 F.3d at 573; see also 
Schwenk v. Hartford, 204 F.3d 1187, 1201 (9th Cir. 2000).
---------------------------------------------------------------------------

    Likewise, CRC does not find the rule's inclusion of gender identity 
or transgender status to be inconsistent with congressional efforts to 
ban gender identity discrimination in programs and activities receiving 
federal financial assistance. Enactment of subsequent legislation may 
simply codify and clarify interpretations of existing laws to provide 
additional guidance. In addition, as the Supreme Court has held, 
several equally tenable inferences may be drawn from congressional 
inaction, including the inference that existing legislation already 
incorporates a proposed change, and therefore congressional inaction 
lacks persuasive significance in the interpretation of existing 
statutes.\141\
---------------------------------------------------------------------------

    \141\ Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 
650 (1990).
---------------------------------------------------------------------------

    Therefore, CRC retains the terms ``transgender status'' and 
``gender identity'' in the definition of ``sex'' in Sec.  38.7(a) in 
the final rule.
    Comment: The religious organizations further asserted that Section 
188's prohibition on sex discrimination is subject to the exception for 
religious organizations contained in Title IX.\142\ They asserted that 
Title IX's religious exception applies to CRC's rule because WIOA 
Section 188 forbids sex discrimination ``except as otherwise permitted 
under title IX'' and requires the Secretary to promulgate 
nondiscrimination regulations that are ``consistent with the Acts 
referred to in subsection (a)(1)'' of Section 188, including Title 
IX.\143\ The religious organizations further asserted that, even if 
WIOA did not incorporate Title IX's religious exception, the Religious 
Freedom Restoration Act (RFRA) could support a religious exemption from 
any nondiscrimination obligation the final rule imposed with regard to 
gender identity, transgender status, or sexual orientation. The 
religious organizations stated that they were not suggesting that any 
person eligible to participate in job training and placement programs 
should be excluded from the programs. They asserted that RFRA would 
support an exemption from any interference ``with the ability of a 
religious organization to require adherence to religiously-grounded 
employee conduct standards'' or ``to hire and retain staff whose 
beliefs and practices are consistent with those of the organization.''
---------------------------------------------------------------------------

    \142\ The religious organizations referred to the exception that 
provides that the prohibition on sex discrimination ``shall not 
apply to an educational institution which is controlled by a 
religious organization if the application of this subsection would 
not be consistent with the religious tenets of such organization.'' 
20 U.S.C. 1681(a)(3).
    \143\ 29 U.S.C. 3248(a)(2), (e).
---------------------------------------------------------------------------

    Response: CRC agrees that WIOA incorporates the exceptions 
contained in Title IX. As the religious organizations noted, WIOA 
Section 188 forbids sex discrimination ``except as otherwise permitted 
under title IX.'' \144\ Title IX's prohibition on sex discrimination 
applies, with certain exceptions, to ``any education program or 
activity receiving Federal financial assistance.'' \145\ In addition to 
the exception provision cited by the religious organizations, Title IX 
provides that the term ``program or activity'' ``does not include any 
operation of an entity which is controlled by a religious organization 
if the application of section 1681 of this title to such operation 
would not be consistent with the religious tenets of such 
organization.'' \146\ Accordingly, the Department's Title IX regulation 
already contains an exemption provision and a mechanism for receiving 
exemption claims at 29 CFR 36.205.
---------------------------------------------------------------------------

    \144\ 29 U.S.C. 3248(a)(2).
    \145\ 20 U.S.C. 1681(a).
    \146\ 20 U.S.C. 1687.
---------------------------------------------------------------------------

    The Title IX religious exception is available to recipients if they 
meet the criteria for the exception. The exception applies to any 
recipient that is an educational institution controlled by a religious 
organization if the application of this part's prohibition against sex 
discrimination would not be consistent with the organization's 
religious tenets.\147\ It also applies to the educational operation of 
any recipient that is an entity controlled by a religious organization 
if the application of this part's prohibition against sex 
discrimination to that operation would not be consistent with the 
organization's religious tenets.\148\ Recipients that meet either set 
of criteria may follow the process established by the Department's 
Title IX regulation at 29 CFR 36.205(b) to submit exemption 
claims.\149\ The Department of Education has published information that 
CRC finds instructive in determining whether a recipient is 
``controlled by a religious organization.'' \150\ If a recipient has

[[Page 87148]]

already obtained a Title IX religious exemption from the Department of 
Education, such exemption may be submitted to CRC as a basis for an 
exemption from the Department of Labor.\151\
---------------------------------------------------------------------------

    \147\ See 20 U.S.C. 1681(a)(3).
    \148\ See 20 U.S.C. 1687.
    \149\ The Department's Title IX exemption provision and process 
are as follows:
    Educational institutions and other entities controlled by 
religious organizations.
     Exemption: These Title IX regulations do not apply to 
any operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that 
application of these Title IX regulations would not be consistent 
with the religious tenets of such organization.
     Exemption claims: An educational institution or other 
entity that wishes to claim the exemption set forth in the paragraph 
above shall do so by submitting in writing to the Director, Civil 
Rights Center, a statement by the highest-ranking official of the 
institution, identifying the provisions of these Title IX 
regulations that conflict with a specific tenet of the religious 
organization.
    See 29 CFR 36.205.
    \150\ The Department of Education normally considers an 
institution to be controlled by a religious organization if it falls 
into one of the following categories:
    (1) It is a school or department of divinity, defined as an 
institution or a department or branch of an institution whose 
program is specifically for the education of students to prepare 
them to become ministers of religion or to enter upon some other 
religious vocation, or to prepare them to teach theological 
subjects; or
    (2) It requires its faculty, students or employees to be members 
of, or otherwise espouse a personal belief in, the religion of the 
organization by which it claims to be controlled; or
    (3) Its charter and catalog, or other official publication, 
contains explicit statement that it is controlled by a religious 
organization or an organ thereof or is committed to the doctrines of 
a particular religion, and the members of its governing body are 
appointed by the controlling religious organization or an organ 
thereof, and it receives a significant amount of financial support 
from the controlling religious organization or an organ thereof.
    U.S. Dep't of Educ., Office for Civil Rights, Religious 
Exemption (2016), http://www2.ed.gov/about/offices/list/ocr/frontpage/pro-students/rel-exempt-pr.html.
    \151\ See Nondiscrimination on the Basis of Sex in Education 
Programs and Activities Receiving Federal Financial Assistance; 
Proposed Common Rule, 64 FR 58568, 58570, Oct. 29, 1999.
---------------------------------------------------------------------------

    CRC also acknowledges that RFRA applies to all federal laws, 
including WIOA. CRC declines, however, to implement a blanket RFRA 
exemption from the final rule's nondiscrimination obligations because 
claims under RFRA are inherently individualized and fact specific.\152\ 
Insofar as the application of any requirement under this part would 
violate RFRA, such application shall not be required.
---------------------------------------------------------------------------

    \152\ The RFRA analysis evaluates whether a legal requirement 
imposed by the federal government substantially burdens a person's 
exercise of religion; if it does, the government must demonstrate 
that application of the legal requirement to the person furthers a 
compelling governmental interest and is the least restrictive means 
to further that interest. See 42 U.S.C. 2000bb-1(b).
---------------------------------------------------------------------------

    The preamble to the proposed rule asked for public comment on the 
question of whether the final rule should add sexual orientation 
discrimination to Sec.  38.7(a) as a form of unlawful sex 
discrimination. CRC received numerous responsive comments.
    Comments: Many commenters requested that CRC explicitly state in 
the rule that Section 188's prohibition of discrimination on the basis 
of sex includes discrimination on the basis of sexual orientation. They 
cited EEOC decisions and recent case law supporting this interpretation 
under Title VII, Title IX, and other laws. Some commenters supporting 
the inclusion of sexual orientation in this rule described the 
Department's policy as deferring to the EEOC's interpretation of Title 
VII law and pointed out that the Department has failed to defer to the 
EEOC's clear interpretation that sexual orientation discrimination is a 
form of sex discrimination. Many of these commenters urged CRC to 
incorporate the ``modern legal standard rather than adopting an 
outmoded interpretation based on decades-old precedent.''
    Other commenters asserted that Section 188 was not intended to 
protect against sexual orientation discrimination, that no federal 
appellate court has interpreted Title IX's or Title VII's ban on sex 
discrimination to prohibit sexual orientation discrimination, and that 
CRC therefore does not have authority to include this basis.
    Response: As noted above, as well as in the preamble to the 
proposed rule, as a matter of policy, CRC supports banning 
discrimination on the basis of sexual orientation. Ensuring equal 
access to aid, benefit, service, and training opportunities is critical 
to meeting the objectives of Section 188 and, more broadly, WIOA. This 
policy goal is reflected in executive actions such as Executive Order 
13672, issued on July 21, 2014, adding sexual orientation and gender 
identity to the expressly protected bases under Executive Order 11246, 
which applies to the employment practices of covered federal 
contractors, including covered Job Corps contractors.\153\ Supreme 
Court decisions have, moreover, repeatedly made clear that individuals 
and couples deserve equal rights regardless of their sexual 
orientation.\154\ The preamble to the proposed rule acknowledged, 
however, that ``[c]urrent law is mixed on whether existing Federal 
nondiscrimination laws prohibit discrimination on the basis of sexual 
orientation as a part of their prohibitions on sex discrimination.'' 
\155\ The preamble stated CRC's policy position, noted that ``[t]he 
final rule should reflect the current state of nondiscrimination law, 
including with respect to prohibited bases of discrimination,'' and 
sought comment on the issue.\156\
---------------------------------------------------------------------------

    \153\ See OFCCP Executive Order 13672 Final Rule, supra note 19.
    \154\ For example, in 1996, the Supreme Court struck down an 
amendment to the Colorado constitution that prohibited the State 
government from providing any legal protections to gay, lesbian, and 
bisexual individuals. Romer v. Evans, 517 U.S. 620 (1996). In 2015, 
the Supreme Court ruled that states may not prohibit same-sex 
couples from marrying and must recognize the validity of same-sex 
couples' marriages. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 
See also United States v. Windsor, 133 S. Ct. 2675 (2013) (declaring 
unconstitutional the federal Defense of Marriage Act's definition of 
``marriage'' as only a legal union between a man and a woman); 
Lawrence v. Texas, 539 U.S. 558 (2003) (declaring unconstitutional a 
state statute criminalizing consensual same-sex sexual conduct).
    \155\ CRC WIOA NPRM, supra note 70, at 4509.
    \156\ Id. at 4509-10.
---------------------------------------------------------------------------

    In Price Waterhouse v. Hopkins, the Supreme Court held that an 
employer's failure to promote a female senior manager to partner 
because of the sex-stereotyped perceptions that she was too aggressive 
and did not ``walk more femininely, talk more femininely, dress more 
femininely, wear make-up, have her hair styled, and wear jewelry'' was 
unlawful sex-based employment discrimination.\157\ Though Price 
Waterhouse did not involve an allegation of discrimination based on an 
individual's sexual orientation, the Supreme Court recognized in that 
case that unlawful sex discrimination occurs when an individual is 
treated differently based on a failure to conform to gender-based 
stereotypes about how individuals should present themselves or 
behave.\158\ The Department of Justice has therefore taken the position 
that a well-pled complaint alleging discrimination against a gay 
employee because of failure to conform to sex stereotypes states a 
viable sex discrimination claim under Title VII.\159\ When a recipient 
discriminates against an individual based on sexual orientation, the 
entity may well rely on stereotypical notions or expectations of how 
members of a certain sex should act or behave. These stereotypes are 
precisely the types of gender-based assumptions prohibited by Price 
Waterhouse.\160\
---------------------------------------------------------------------------

    \157\ 490 U.S. 228, 235 (1989) (plurality op.).
    \158\ Id. at 250-51.
    \159\ See Def.'s Renewed Mot. to Dismiss at 17-18, Terveer v. 
Billington, No. 1:12-cv-1290 (D.D.C. Mar. 21, 2013), ECF No. 27.
    \160\ Price Waterhouse, 490 U.S. at 288; see, e.g., Deneffe v. 
SkyWest, Inc., No. 14-cv-00348, 2015 WL 2265373, at *6 (D. Colo. May 
11, 2015); Terveer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 
2014); Boutillier v. Hartford Pub. Schs., 2014 WL 4794527 (D. Conn. 
2014); Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1037-38 
(N.D. Ohio 2012); Heller v. Columbia Edgewater Country Club, 195 F. 
Supp. 2d 1212, 1224, adopted, 195 F. Supp. 2d 1216 (D. Or. 2002); 
Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002).
---------------------------------------------------------------------------

    Based on this understanding, some courts have recognized in the 
wake of Price Waterhouse that discrimination ``because of sex'' 
includes discrimination based on sex stereotypes about sexual 
attraction and sexual behavior \161\ or about deviations from 
``heterosexually defined gender norms.'' \162\ For example, a recent 
district court decision in the Ninth Circuit held that the distinction 
between discrimination based on gender stereotyping and discrimination 
based on sexual orientation is artificial and that claims based on 
sexual orientation are covered by Title VII and Title IX as a form of 
sex discrimination.\163\
---------------------------------------------------------------------------

    \161\ See Videckis v. Pepperdine Univ., No. CV 15-00298, 2015 WL 
8916764 (C.D. Cal. Dec. 15, 2015).
    \162\ Isaacs v. Felder Servs., No. 2:13cv693-MHT, 2015 WL 
6560655, at *4 (M.D. Ala. Oct. 29, 2015).
    \163\ Videckis, 2015 WL 8916764, at *5-6; see also U.S. Equal 
Emp't Opportunity Comm'n v. Scott Med. Health Ctr., No. 16-225, 2016 
WL 6569233, at *6 (W.D. Pa. Nov. 4, 2016). Prior circuit court 
decisions have drawn such a distinction. See, e.g., Dawson v. Bumble 
& Bumble, 398 F.3d 211, 218 (2d Cir. 2005); Vickers v. Fairfield 
Med. Ctr., 453 F.3d 757, 764 (6th Cir. 2006).

---------------------------------------------------------------------------

[[Page 87149]]

    In addition, in Baldwin v. Department of Transportation, the EEOC 
concluded that Title VII's prohibition of discrimination ``because of 
sex'' includes sexual orientation discrimination because discrimination 
on the basis of sexual orientation necessarily involves sex-based 
considerations.\164\ The EEOC relied on several theories to reach this 
conclusion: A plain reading of the term ``sex''' in the statutory 
language, an associational theory of discrimination based on ``sex,'' 
and the gender stereotype theory announced in Price Waterhouse.\165\
---------------------------------------------------------------------------

    \164\ Baldwin v. Dep't of Transp., Appeal No. 0120133080, 2015 
WL 4397641, at *5 (EEOC July 16, 2015).
    \165\ Id. at *4-8.
---------------------------------------------------------------------------

    For all of these reasons, CRC concludes that Section 188's 
prohibition of discrimination on the basis of sex includes, at a 
minimum, sex discrimination related to an individual's sexual 
orientation where the evidence establishes that the discrimination is 
based on gender stereotypes. Accordingly, CRC will evaluate complaints 
alleging sex discrimination related to an individual's sexual 
orientation to determine whether they can be addressed under Sec.  
38.7(d) of the final rule as discrimination on the basis of sex 
stereotypes.\166\
---------------------------------------------------------------------------

    \166\ As discussed at the end of the section-by-section analysis 
of Sec.  38.7(d), CRC adds to that section of the final rule an 
example addressing adverse treatment of an individual based on 
sexual orientation where the evidence establishes that the 
discrimination is based on gender stereotypes.
---------------------------------------------------------------------------

    CRC has decided not to resolve in this rule whether discrimination 
on the basis of an individual's sexual orientation alone is a form of 
sex discrimination under Section 188. CRC anticipates that the law will 
continue to evolve on this issue, and CRC will continue to monitor 
legal developments in this area. CRC will enforce Section 188 in light 
of those developments and will consider issuing further guidance on 
this subject as appropriate.
    Proposed Sec.  38.7(b) stated that recipients may not make any 
distinction based on sex in providing any aid, benefit, service, or 
training under a WIOA Title I-financially assisted program or activity 
and provided a nonexhaustive list of such distinctions to assist 
recipients in meeting their nondiscrimination and equal opportunity 
responsibilities under this section. CRC addresses each example below.
    Proposed Sec.  38.7(b)(1) addressed making a distinction between 
married and unmarried persons that is not applied equally to 
individuals of both sexes. CRC received no comments on this provision 
and adopts it without change in the final rule.
    Proposed Sec.  38.7(b)(2) addressed denying individuals of one sex 
who have children access to aid, benefit, service, or training 
opportunities that are available to individuals of another sex who have 
children.
    Proposed Sec.  38.7(b)(3) addressed adversely treating unmarried 
individuals of one sex, but not unmarried individuals of another sex, 
who become parents. CRC received only supportive comments on these 
provisions and adopts both as proposed.
    Proposed Sec.  38.7(b)(4) addressed distinctions on the basis of 
sex in formal or informal job training programs, educational programs, 
or other opportunities such as networking, mentoring, individual 
development plans, or on the job training opportunities. CRC received 
no comments on this provision and adopts it without change in the final 
rule.
    Proposed Sec.  38.7(b)(5) addressed posting job announcements that 
recruit or advertise for individuals for certain jobs on the basis of 
sex, including through the use of gender-specific terms for jobs, such 
as ``waitress.'' CRC received no comments on this provision of its 
proposed rule. However, on the nearly identical provision in the 
proposed Discrimination on the Basis of Sex rule, OFCCP received a 
comment stating that the EEOC permits gender-specific job titles in 
advertisements if they are clearly used as terms of art rather than as 
a means for deterring applicants on the basis of sex.\167\ In response 
to that comment and comments asserting that removal of gender-specific 
job titles would impose costs on federal contractors, including those 
associated with negotiating new job titles with unions, OFCCP amended 
its proposed rule by deleting the clause ``including through use of 
gender-specific terms for jobs (such as `lineman').'' OFCCP stated that 
it would follow EEOC's policy guidance on Use of Sex-Referent Language 
in Employment Opportunity Advertising and Recruitment, which provides 
that use of sex-referent language in employment opportunity 
advertisements and other recruitment practices ``is suspect but is not 
a per se violation of Title VII'' and that ``[w]here sex-referent 
language is used in conjunction with prominent language that clearly 
indicates the employer's intent to include applicants or prospective 
applicants of both sexes, no violation of Title VII will be found.'' 
\168\
---------------------------------------------------------------------------

    \167\ OFCCP Sex Discrimination Final Rule, supra note 19, at 
39121.
    \168\ EEOC Notice No. 915-051, at 2 (Apr. 16, 1990). While this 
document is not available on EEOC's Web site, a hard copy of it is 
available for public viewing in EEOC's library. A copy of the notice 
is also available for public viewing in CRC's office.
---------------------------------------------------------------------------

    For the sake of consistency across the Department's regulations, 
CRC removes the proposed phrase ``including through the use of gender-
specific terms for jobs (such as `waitress')'' from Sec.  38.7(b)(5) in 
the final rule. Like OFCCP, CRC will follow EEOC's policy guidance on 
Use of Sex-Referent Language in Employment Opportunity Advertising and 
Recruitment. CRC similarly recommends as a best practice incorporating 
the use of gender-neutral terms where such alternatives exist.
    Proposed Sec.  38.7(b)(6) addressed treating an individual 
adversely because the individual identifies with a gender different 
from the sex assigned at birth or the individual has undergone, is 
undergoing, or is planning to undergo processes or procedures designed 
to facilitate the individual's transition to a sex other than the 
individual's assigned sex at birth. In addition to the comments CRC 
received supporting and opposing the inclusion of transgender status 
and gender identity, already discussed in connection with Sec.  
38.7(a), CRC also received supportive comments suggesting modifications 
of Sec.  38.7(b)(6).
    Comments: Six individual advocacy organizations, the coalition of 
eighty-six organizations, and a health organization submitted similar 
comments on this provision. They commended CRC for including this 
example of an unlawful sex-based discriminatory practice but urged CRC 
to elaborate that refusing to treat an individual according to the 
individual's gender identity constitutes sex discrimination. Citing 
EEOC federal sector decisions,\169\ these commenters

[[Page 87150]]

suggested adding one or more examples to Sec.  38.7(b) addressing 
deliberate and repeated use of names and pronouns that are inconsistent 
with an individual's gender identity; refusing to process a name change 
for a transgender individual; and prohibiting transgender individuals 
from dressing in a manner consistent with their gender.
---------------------------------------------------------------------------

    \169\ See, e.g., Lusardi v. Dep't of the Army, Appeal No. 
0120133395, 2015 WL 1607756, at *11 (EEOC Apr. 1, 2015) 
(``Persistent failure to use the employee's correct name and pronoun 
may constitute unlawful, sex-based harassment if such conduct is 
either severe or pervasive enough to create a hostile work 
environment when `judged from the perspective of a reasonable person 
in the [individual's] position.' '' (quoting Oncale v. Sundowner 
Offshore Servs., 523 U.S. 75, 81 (1998))); Eric S. v. Dep't of 
Veterans Affairs, Appeal No. 0120133123, 2014 WL 1653484, at *2 
(EEOC Apr. 16, 2014) (recognizing a claim of sex-based harassment in 
violation of Title VII where ``Complainant has explained how he was 
harmed by the ongoing refusal to change his name in the [the 
employer's computer] system, as well as the alleged hostility and 
threats from the Information Security Officer . . . because he 
changed his gender identity from female to male''); Jameson v. U.S. 
Postal Serv., Appeal No. 0120130992, 2013 WL 2368729, at *2 (EEOC 
May 21, 2013) (``Intentional misuse of the employee's new name and 
pronoun may cause harm to the employee, and may constitute sex based 
discrimination and/or harassment.'')).
---------------------------------------------------------------------------

    Response: CRC agrees that refusing to treat an individual according 
to the individual's gender identity may constitute unlawful sex 
discrimination if the underlying facts establish a hostile environment 
or other adverse treatment on the basis of transgender status or gender 
identity, consistent with the EEOC federal sector cases cited by the 
commenters. However, CRC declines to insert the specific examples 
suggested by the commenters because the determination of whether any 
such action constitutes unlawful sex discrimination is highly fact 
specific, making a categorical prohibition in regulatory text 
inappropriate. With respect to the principle itself--that refusing to 
treat an individual according to the individual's gender identity may 
constitute unlawful sex discrimination--CRC believes that the principle 
is adequately expressed in the rule as proposed, not only here in Sec.  
38.7(b)(6) but also in Sec.  38.7(a), prohibiting discrimination on the 
basis of transgender status or gender identity; in Sec.  38.7(d)(3), 
prohibiting adverse treatment because of an individual's actual or 
perceived gender identity; and in Sec.  38.10(b), prohibiting 
harassment based on gender identity and failure to comport with sex 
stereotypes.
    For these reasons, and for the reasons discussed above in the main 
preamble and in connection with the inclusion of transgender status and 
gender identity in Sec.  38.7(a), CRC adopts Sec.  38.7(b)(6) as 
proposed.
    Proposed Sec.  38.7(b)(7) addressed denying individuals who are 
pregnant, who become pregnant, or who plan to become pregnant 
opportunities for or access to any aid, benefit, service, or training 
on the basis of pregnancy. CRC received two supportive comments 
suggesting modifications of Sec.  38.7(b)(7).
    Comments: The coalition of eighty-six organizations, as well as an 
individual advocacy organization, commended CRC for including this 
example but asserted that the example is incomplete. They recommended 
that it be revised to expressly include individuals who are of 
childbearing capacity and to refer not only to pregnancy but also to 
childbirth and related medical conditions, including childbearing 
capacity. Both commenters further recommended that an example be added 
to Sec.  38.7(b) to require that pregnant individuals be provided 
reasonable accommodations related to pregnancy or pregnancy-related 
medical conditions where such accommodations are provided, or required 
to be provided, to other program participants similar in their ability 
or inability to work.
    Response: CRC does not find it necessary to alter the proposed 
example in Sec.  38.7(b)(7) or to add the suggested example to the 
final rule. The list of examples provided in Sec.  38.7(b) is not 
exhaustive. Moreover, the proposed regulatory text encompasses the 
commenters' suggestions. Specifically, the principle of 
nondiscrimination based on pregnancy established in Sec.  38.8 includes 
the references to childbirth, related medical conditions, and 
childbearing capacity that the commenters requested be added to Sec.  
38.7. Furthermore, the example of discrimination in Sec.  38.8(a) 
encompasses the commenters' first suggestion (regarding denying any 
aid, benefit, service, or training to individuals of childbearing 
capacity), and the example of discrimination in Sec.  38.8(d) 
encompasses the commenters' second suggestion (regarding denying 
reasonable accommodations to pregnant individuals). However, based on 
the commenters' suggestions, CRC believes it would be helpful to add to 
Sec.  38.7(b)(7) a cross-reference to the section devoted to 
discrimination based on pregnancy. Therefore, CRC adopts Sec.  
38.7(b)(7) as proposed in the final rule, with the addition of a cross-
reference to Sec.  38.8.
    Proposed Sec.  38.7(b)(8) provided that it is an unlawful sex-based 
discriminatory practice to make any facilities associated with WIOA 
Title I-financially assisted programs or activities available only to 
members of one sex, with the exception that if the recipient provides 
restrooms or changing facilities, the recipient must provide separate 
or single-user restrooms or changing facilities to assure privacy. CRC 
received comments requesting a specific clarification of this proposed 
provision.
    Comments: Eight commenters--the coalition of eighty-six women's, 
workers', and civil rights organizations; six individual advocacy 
organizations; and one health organization--encouraged CRC to clarify 
that, while recipients are authorized to provide sex-segregated locker 
rooms and bathrooms, they are not required to do so. These commenters 
explained that the revision is necessary to provide programs with 
control and flexibility to determine the best layout for each facility 
on a case-by-case basis and to offer unisex facilities in appropriate 
contexts.
    Response: CRC agrees with the commenters that neither WIOA nor 
Title IX imposes a legal requirement on recipients to provide sex-
segregated restrooms or changing facilities. In addition, CRC notes 
that OFCCP, in its Discrimination on the Basis of Sex final rule, 
recognized the role that providing sex-neutral single-user facilities 
could play in preventing harassment of transgender employees, and OFCCP 
therefore included, as a best practice, the recommendation that federal 
contractors designate single-user facilities as sex-neutral.\170\ Title 
IX authorizes institutions, if they so choose, to maintain ``separate 
living facilities for the different sexes.'' \171\ The U.S. Department 
of Education's regulations implementing Title IX provide that a 
``recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.'' \172\ Therefore, CRC accepts the 
commenters' suggestion to change ``must'' to ``may'' in Sec.  
38.7(b)(8) of the final rule.
---------------------------------------------------------------------------

    \170\ OFCCP Sex Discrimination Final Rule, supra note 19, at 
39122.
    \171\ 20 U.S.C. 1686; see also 34 CFR 106.32.
    \172\ 34 CFR 106.33 (emphasis added).
---------------------------------------------------------------------------

    Proposed Sec.  38.7(b)(9) addressed denying individuals access to 
the bathrooms used by the gender with which they identify. In addition 
to the comments CRC received supporting and opposing the inclusion of 
transgender status and gender identity, already discussed in connection 
with Sec.  38.7(a), CRC also received comments specifically supporting, 
opposing, and suggesting modifications to this proposed example of an 
unlawful sex-based discriminatory practice.
    Comments: Nine commenters--the coalition of eighty-six women's, 
workers', and civil rights organizations; a group of ten advocacy 
organizations and a union; six individual advocacy organizations; and a 
health organization--applauded CRC's inclusion of this example. They 
stated that requiring nondiscriminatory access to bathroom facilities 
is consistent with the position of numerous other federal agencies, as 
well as thirteen States and the District of Columbia. Many of these 
commenters asserted that proposed Sec.  38.7(b)(9) provided essential 
protection for transgender individuals

[[Page 87151]]

because ``employers and training program staff continue to misinterpret 
their obligations under sex discrimination laws, and frequently deny 
transgender people access to appropriate restrooms.'' \173\
---------------------------------------------------------------------------

    \173\ The commenters cited a national study of transgender 
individuals finding that 22 percent of respondents reported being 
denied access to restrooms consistent with their gender identity in 
the workplace. Injustice at Every Turn, supra note 53, at 56.
---------------------------------------------------------------------------

    CRC also received comments opposing the inclusion of this example 
from the group of religious organizations and seven individuals. The 
religious organizations stated that WIOA incorporates Title IX's 
``separate living facilities'' exception and that institutions are 
therefore permitted to maintain separate bathrooms based on biological 
sex. The religious organizations further asserted that interpreting 
Section 188's prohibition on sex discrimination in this way ``would 
violate basic and legitimate expectations of bodily privacy.'' The 
individual commenters cited privacy and safety concerns, asserting that 
``unintended consequences,'' such as assault or abuse of children, 
would result from the inclusion of this example.
    Response: CRC believes that the example proposed in Sec.  
38.7(b)(9) is consistent with Title VII and Title IX case law,\174\ as 
well as other agencies' approaches, including that of the Department's 
OFCCP.\175\ Thus, CRC disagrees with the religious organizations' 
assertion that Title IX contains ``an exemption permitting the 
maintenance of separate bathrooms based on biological sex'' (emphasis 
added). Indeed, after the comment period for this rule closed, a 
federal appellate court overturned one of the district court cases 
cited by the religious organizations.\176\ Further, the example in 
Sec.  38.7(b)(9) is the logical outgrowth of the rulings that 
discrimination on the basis of gender identity is discrimination on the 
basis of sex, as discussed earlier in this preamble and in connection 
with Sec.  38.7(a).\177\
---------------------------------------------------------------------------

    \174\ G.G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 723 (4th 
Cir. 2016) (upholding the Department of Education's interpretation 
of its Title IX regulation as requiring schools to permit 
transgender students to access sex-segregated facilities consistent 
with their gender identity), cert. granted, No. 16-273, 2016 WL 
4565643 (U.S. Oct. 28, 2016); Highland Bd. of Ed. v. U.S. Dep't of 
Ed., 2016 WL 5372349, at *11 (S.D. Ohio Sept. 26, 2016); Whitaker v. 
Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., No. 2:16-cv-00943-PP 
(E.D. Wis. Sept. 22, 2016), ECF No. 33; Carca[ntilde]o v. McCrory, 
2016 WL 4508192, at *11-16 (M.D.N.C. Aug. 26, 2016); Hart v. Lew, 
973 F. Supp. 2d 561, 581-82 (D. Md. 2013). But see Texas v. United 
States, No. 7:16-cv-54, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016).
    \175\ Lusardi v. Dep't of Army, Appeal No. 0120133395, 2015 WL 
1607756, at *8 (EEOC Apr. 1, 2015); Brief for the United States as 
Amicus Curiae Supporting Plaintiff-Appellant, G.G. (4th Cir. Oct. 
28, 2015); OFCCP Sex Discrimination Final Rule, supra note 19, at 
39122-23; Office of Personnel Mgmt., Diversity and Inclusion 
Reference Materials: Guidance Regarding the Employment of 
Transgender Individuals in the Federal Workplace, available at 
http://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/.
    \176\ G.G., 822 F.3d at 723.
    \177\ See also OFCCP Sex Discrimination Final Rule, supra note 
19, at 39118-19 (discrimination on the basis of gender identity is 
discrimination on the basis of sex); HHS Nondiscrimination Final 
Rule, supra note 18, at 31387-89 (same).
---------------------------------------------------------------------------

    CRC also does not agree that allowing individuals to access the 
bathrooms used by the gender with which they identify will threaten 
other individuals' safety or privacy. Significantly, the commenters 
cited no evidence that such policies compromise the safety of other 
bathroom users, and CRC has identified no such evidence.\178\ With 
regard to alleged privacy threats, such comments assume that non-
transgender individuals will react to the presence of transgender 
individuals based on the transgender individuals' sex assigned at 
birth, rather than on the gender with which they identify in their 
daily interactions. Additionally, it is well established that private 
bias, prejudice, or discomfort ``is not a legitimate basis for 
retaining the status quo.'' \179\ CRC agrees with the EEOC that:
---------------------------------------------------------------------------

    \178\ Cf. Nat'l Task Force to End Sexual and Domestic Violence 
Against Women, National Consensus Statement of Anti-Sexual Assault 
and Domestic Violence Organizations in Support of Full and Equal 
Access for the Transgender Community (Apr. 21, 2016), available at 
http://endsexualviolence.org/files/NTFNationalConsensusStmtTransAccessWithSignatories.pdf (asserting 
that state and local nondiscrimination laws protecting transgender 
people's access to facilities consistent with their gender identity 
have not increased sexual violence or other public safety issues).
    \179\ Latta v. Otter, 771 F.3d 456, 470-71 (9th Cir. 2014); see 
also Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (``Private biases 
may be outside the reach of the law, but the law cannot, directly or 
indirectly, give them effect.''); Cruzan v. Special Sch. Dist., 294 
F.3d 981, 984 (8th Cir. 2002) (concluding that ``a reasonable person 
would not have found the work environment hostile or abusive'' where 
a school district had a policy allowing a transgender woman to use 
the women's faculty restroom).

    [S]upervisory or co-worker confusion or anxiety cannot justify 
discriminatory terms and conditions of employment. Title VII 
prohibits discrimination based on sex whether motivated by 
hostility, by a desire to protect people of a certain gender, by 
gender stereotypes, or by the desire to accommodate other people's 
prejudices or discomfort. . . . Allowing the preferences of co-
workers to determine whether sex discrimination is valid reinforces 
the very stereotypes and prejudices that Title VII is intended to 
overcome.\180\
---------------------------------------------------------------------------

    \180\ Lusardi v. Dep't of the Army, Appeal No. 0120133395, 2015 
WL 1607756, at *9 (EEOC Apr. 1, 2015) (citing, among others, 
Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Cir. 1981) 
(female employee could not lawfully be fired because employer's 
foreign clients would only work with males); Diaz v. Pan Am. World 
Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971) (rejecting customer 
preference for female flight attendants as justification for 
discrimination against male applicants)).

    CRC therefore retains the example of sex discrimination proposed in 
Sec.  38.7(b)(9).
    Comments: Most of the commenters that supported inclusion of the 
example in Sec.  38.7(b)(9) recommended that clarifying changes be 
made. They noted that there was no principled basis for restricting the 
example of equal access to bathrooms, and they requested clarification 
that the example applies to other sex-segregated facilities as well. 
Many of the commenters also recommended that the example refer to 
facilities that are ``consistent with,'' rather than ``used by,'' the 
gender with which individuals identify. They explained that it is 
important to ensure that all individuals are able to access the 
facilities that are most consistent with their gender identity.
    Response: CRC agrees that the legal principle of equality and non-
stigmatization underlying the example proposed in Sec.  38.7(b)(9) 
applies to all types of sex-segregated facilities. The proposed example 
was not intended to limit transgender individuals' access to other 
facilities that may be separated by sex. CRC further agrees that 
referring to the facilities that are ``consistent with the gender with 
which [individuals] identify'' more clearly communicates its intent to 
include individuals of all genders in the regulatory language.
    Accordingly, CRC revises the example of sex discrimination proposed 
in Sec.  38.7(b)(9) to read ``Denying individuals access to the 
restrooms, locker rooms, showers, or similar facilities consistent with 
the gender with which they identify'' (emphasis added).
    Finally, CRC received one comment suggesting an addition to Sec.  
38.7(b).
    Comment: The coalition of eighty-six women's, workers', and civil 
rights organizations recommended adding the following example: 
``[D]iscussing current and future plans about family during the 
interview or career counseling process may be evidence of sex 
discrimination.'' The organizations asserted that adding such an 
example would align the rule with EEOC guidance under the ADA regarding 
pre-offer disability-related inquiries and under Title VII regarding 
inquiries about individuals' intentions to become pregnant.
    Response: CRC agrees that recipients should, as a best practice, 
refrain from

[[Page 87152]]

discussing family plans during the interview or career counseling 
process. However, such discussions serve as evidence of unlawful sex 
discrimination only when combined with other facts that support an 
inference of discrimination. Accordingly, the EEOC Title VII guidance 
cited by the commenters states that the EEOC typically regards 
inquiries into whether applicants or employees intend to become 
pregnant ``as evidence of pregnancy discrimination where the employer 
subsequently makes an unfavorable job decision affecting a pregnant 
worker.'' \181\ Because the determination of whether such discussions 
support an inference of unlawful sex discrimination is highly fact 
specific, a categorical prohibition in regulatory text is 
inappropriate. CRC also finds inapposite the analogy to the ADA rule 
regarding pre-offer disability-related inquiries because pregnancy is 
not in itself a disability.\182\ For these reasons, CRC declines to 
include this additional example in proposed Sec.  38.7(b).
---------------------------------------------------------------------------

    \181\ U.S. Equal Emp't Opportunity Comm'n, Enforcement Guidance 
on Pregnancy Discrimination and Related Issues I.A.3.b (2015), 
available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (emphasis added) (hereinafter ``EEOC 
Pregnancy Guidance'').
    \182\ Id. at II.A.
---------------------------------------------------------------------------

    Proposed Sec.  38.7(c) provided that a recipient's policies or 
practices that have an adverse impact on the basis of sex and are not 
program-related and consistent with program necessity constitute sex 
discrimination in violation of WIOA. CRC received comments supporting, 
opposing, and suggesting modifications to this proposed provision.
    Comments: Two commenters, a think tank and a State agency, opposed 
CRC's disparate impact regulations in general, though they did not 
refer specifically to this provision.
    Response: For the same reasons as discussed in connection with 
Sec.  38.6, CRC has authority to promulgate disparate impact 
regulations, and it disagrees that this rule in general or Sec.  38.7 
in particular should prohibit only intentional discrimination, that is, 
disparate treatment discrimination.
    CRC does, however, make two technical changes to the language 
proposed in Sec.  38.7(c). First, under Title IX, as under Title VI, 
the disparate impact analysis examines whether the regulated entity's 
policy or practice has a disparate impact on a protected class and, if 
so, whether the entity can demonstrate that there is ``a substantial 
legitimate justification'' and the Department or complainant is not 
able to identify a less discriminatory alternative for the allegedly 
discriminatory practice.\183\ CRC notes that that language is more 
closely applicable to the WIOA context than the proposed language--
``are not program-related and consistent with program necessity''--
which CRC adapted from Title VII.\184\ In the final rule, to match the 
wording of the legal standard that applies to disparate impact 
discrimination under Title IX, CRC changes that clause to ``that lack a 
substantial legitimate justification.'' Second, for the sake of 
consistency with the other disparate impact provisions in the final 
rule, which refer to practices that have the ``effect'' of 
discriminating on a protected basis,\185\ CRC replaces ``an adverse 
impact'' with ``the effect of discriminating.'' CRC intends no 
substantive changes by making these technical revisions.
---------------------------------------------------------------------------

    \183\ N.Y. Urban League, Inc. v. New York, 71 F.3d 1031, 1036 
(2d Cir. 1995); Ga. State Conf. of Branches of NAACP v. Georgia, 775 
F.2d 1403, 1417 (11th Cir. 1985); see also U.S. Dep't of Justice, 
Title IX Legal Manual IV.A.2, available at https://www.justice.gov/crt/title-ix.
    \184\ 42 U.S.C. 2000e-2(k)(1)(A)(i) (requiring a defendant to 
demonstrate that a challenged employment practice that causes a 
disparate impact on a protected basis is ``job related for the 
position in question and consistent with business necessity'').
    \185\ See, e.g., Sec. Sec.  38.6(d), (e), (f); 38.10(a)(3); 
38.11; 38.12(e). Discriminatory ``effect'' may be more readily 
understood in the regulatory text than ``adverse impact'' or 
``disparate impact.'' See, e.g., Young v. United Parcel Serv., 135 
S. Ct. 1338, 1345 (2015) (explaining that, ``[i]n evaluating a 
disparate-impact claim, courts focus on the effects of an employment 
practice, determining whether they are unlawful irrespective of 
motivation or intent'').
---------------------------------------------------------------------------

    Comments: The coalition of eighty-six organizations, along with an 
organization representing tradeswomen, commended CRC for including 
Sec.  38.7(c), observing that it is particularly important for 
addressing gender-based occupational segregation. The commenters stated 
that many obstacles women face in fields considered ``nontraditional'' 
for women are related to requirements or criteria that are not job 
related or required as a business necessity. These commenters 
recommended that CRC include specific examples of policies and 
practices that may have a disparate impact on the basis of sex and 
therefore constitute unlawful sex discrimination if they are not job 
related and consistent with business necessity, such as height, weight, 
and strength requirements. The commenters also recommended that, where 
physical tests are required due to the demands of the job, 
accommodations that are available on job sites should also be provided 
during the tests. Finally, the commenters urged CRC to state that there 
should be uniform interview procedures and questions, such that 
interviews cannot be used as the basis for excluding individuals who 
have met other program requirements without some objective and uniform 
basis for making such determinations.
    Response: CRC agrees that providing a short, nonexhaustive list of 
examples in Sec.  38.7(c), as in the other paragraphs in this section, 
would assist recipients in meeting their nondiscrimination and equal 
opportunity responsibilities under Sec.  38.7. As noted above, this 
provision is only one of several disparate impact provisions in the 
final rule, but CRC believes it is particularly helpful to provide 
examples in Sec.  38.7(c) because there may be unique disparate impact 
issues in the sex discrimination context.
    In the NPRM, CRC cited Title VII cases addressing the same 
employment practices the commenters suggested as examples of neutral 
practices that had disparate impacts on women and were not shown to be 
job related and consistent with business necessity.\186\ Therefore, in 
the final rule, CRC adds an introductory sentence to Sec.  38.7(c) 
followed by two new examples: ``Height or weight qualifications that 
lack a substantial legitimate justification and that negatively affect 
women substantially more than men'' and ``Strength, agility, or other 
physical requirements that lack a substantial legitimate justification 
and that negatively affect women substantially more than men.'' As CRC 
noted in the preamble to the NPRM, the disparate impact analysis may 
also apply to policies and practices that are unrelated to selection 
procedures. For instance, as discussed below in connection with Sec.  
38.8(d), denials of pregnancy accommodations may be analyzed under both 
disparate treatment and disparate impact analyses. The principle in 
Sec.  38.7(c) is intended to encompass all such practices that have the 
effect of discriminating on the basis of sex and that lack a 
substantial legitimate justification.
---------------------------------------------------------------------------

    \186\ CRC WIOA NPRM, supra note 70, at 4508 (citing Blake v. 
City of Los Angeles, 595 F.2d 1367 (9th Cir. 1979) (height 
requirement); Equal Emp't Opportunity Comm'n v. Dial Corp., 469 F.3d 
735 (8th Cir. 2006) (strength test); Johnson v. AK Steel Corp., No. 
1:07-cv-291, 2008 WL 2184230, at *8 (S.D. Ohio May 23, 2008) (no-
restroom policy)).
---------------------------------------------------------------------------

    CRC declines to implement the commenters' other suggestions. CRC 
agrees that, when selection procedures require physical tests because 
of the demands of the job, accommodations that are available on job 
sites should be provided to applicants. Such a practice would help 
ensure that the required physical tests do not have the effect of

[[Page 87153]]

discriminating on the basis of sex. However, CRC does not believe it is 
necessary to impose that categorical requirement in regulatory text. 
For similar reasons, CRC does not adopt the suggestion to require all 
recipients to use uniform interview procedures and questions. However, 
CRC does note that Sec.  38.18(b) requires recipients, in their covered 
employment practices, to comply with the Uniform Guidelines on Employee 
Selection Procedures, 41 CFR part 60-3, where applicable.
    Proposed Sec.  38.7(d) clarified that discrimination based on sex 
stereotypes, such as stereotypes about how persons of a particular sex 
are expected to look, speak, or act, is a form of unlawful sex 
discrimination. It provided a nonexhaustive list of examples of sex 
stereotyping to assist recipients in preventing, identifying, and 
remedying such examples of sex discrimination in their programs. CRC 
received comments supporting and opposing its recognition that sex-
based stereotyping may constitute sex discrimination.
    Comments: The coalition of eighty-six organizations, the women in 
trades organization, a health organization, and an individual supported 
CRC's explicit recognition of discriminatory sex stereotyping. An 
employer opposed the inclusion of Sec.  38.7(d) in the rule. The 
employer asserted that CRC was discriminating against employers with 
traditional values, who should be permitted to impose gender-
stereotyped expectations on their employees if those expectations 
reflect the employers' traditional values.
    Response: As discussed previously in this preamble, the principle 
laid out in Sec.  38.7(d) is well supported by case law \187\ and is 
consistent with other agencies' approaches, particularly with the 
Department of Education's interpretation of Title IX.\188\ CRC does not 
agree that, by including examples of unlawful sex stereotyping in this 
rule, it is discriminating against employers with traditional values. 
As the Supreme Court stated in Price Waterhouse v. Hopkins, with 
respect to ``the legal relevance of sex stereotyping, we are beyond the 
day when an employer could evaluate employees by assuming or insisting 
that they matched the stereotype associated with their group.'' \189\ 
Therefore, CRC retains in the final rule the principle stated in 
proposed Sec.  38.7(d).
---------------------------------------------------------------------------

    \187\ See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 
(1989); Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003); 
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009); 
Chadwick v. Wellpoint, Inc., 561 F.3d 38 (1st Cir. 2009); Terveer v. 
Billington, 34 F. Supp. 3d 100 (D.D.C. 2014).
    \188\ See Revised Sexual Harassment Guidance, supra note 63.
    \189\ Price Waterhouse, 490 U.S. at 251 (plurality op.).
---------------------------------------------------------------------------

    Proposed Sec.  38.7(d)(1) addressed denial of access or other 
adverse treatment based on an individual's failure to comply with 
gender norms and expectations for dress, appearance, and/or behavior, 
including wearing jewelry, make-up, high-heeled shoes, suits, or 
neckties. CRC received two comments opposing this example.
    Comments: The group of religious organizations asserted that the 
proposed example is contrary to case law establishing that dress and 
grooming standards based on biological sex do not violate Title VII. In 
addition, the same employer commenter that raised the objection to 
Sec.  38.7(d) in general, based on the perceived need to protect the 
rights of employers with traditional values, specifically commented 
that employers should be allowed to impose dress and appearance 
requirements on employees consistent with the employers' traditional 
values.
    Response: CRC acknowledges that courts have found gender-specific 
dress and grooming codes not to constitute sex discrimination in 
violation of Title VII, but CRC emphasizes that most such decisions 
have focused on whether the codes disparately impact one sex or impose 
an unequal burden.\190\ The proposed example, by contrast, focuses 
specifically on discrimination on the basis of sex stereotypes. When 
dress and grooming codes have been shown to be motivated by 
discriminatory sex-based stereotypes, courts have found the codes to 
violate Title VII.\191\ With this clarification, CRC adopts the example 
in Sec.  38.7(d)(1) as proposed.
---------------------------------------------------------------------------

    \190\ See, e.g., Jespersen v. Harrah's Operating Co., 392 F.3d 
1076 (9th Cir. 2004); Nichols v. Azteca Rest. Enters., 256 F.2d 864 
(9th Cir. 2001).
    \191\ See, e.g., Lewis v. Heartland Inns, 591 F.3d 1033, 1035, 
1038-1042 (8th Cir. 2010); Carroll v. Talman Fed. Sav. & Loan Ass'n, 
604 F.2d 1028, 1031 (7th Cir. 1979); see also Hayden ex rel. A.H. v. 
Greensburg Cmty. Sch. Corp., 743 F.3d 569, 577-78, 583 (7th Cir. 
2014).
---------------------------------------------------------------------------

    Proposed Sec.  38.7(d)(2) addressed harassment or other adverse 
treatment of a male because he is considered effeminate or 
insufficiently masculine. CRC received no comments on this provision 
and adopts it in the final rule, with a technical edit to clarify that 
harassment is a type of adverse treatment.
    Proposed Sec.  38.7(d)(3) addressed adverse treatment of an 
individual because of the individual's actual or perceived gender 
identity. CRC received no unique comments on this example apart from 
comments on paragraphs (a) and (b)(6), and for the same reasons as 
discussed above in the main preamble and in connection with those 
paragraphs, CRC adopts Sec.  38.7(d)(3) as proposed.
    The rule proposed three examples of sex stereotypes stemming from 
caregiving responsibilities. Proposed Sec.  38.7(d)(4) addressed 
adverse treatment based on sex stereotypes about caregiver 
responsibilities in general. It further provided the example of 
assuming that a female applicant has (or will have) family caretaking 
responsibilities and that those responsibilities will interfere with 
her ability to access any aid, benefit, service, or training. Proposed 
Sec.  38.7(d)(5) addressed adverse treatment of a male because he has 
taken, or is planning to take, care of his newborn or recently adopted 
or foster child, based on the sex-stereotyped belief that women, and 
not men, should care for children. Proposed Sec.  38.7(d)(6) addressed 
denial of access or other adverse treatment of a woman with children 
based on the sex-stereotyped belief that women with children should not 
work long hours, regardless of whether the recipient is acting out of 
hostility or belief that it is acting in her or her children's best 
interest. CRC received comments supporting all three examples and 
recommending modifications to paragraphs (d)(4) and (5).
    Comments: The coalition of eighty-six organizations and an 
individual membership organization supported the recognition of sex 
stereotypes stemming from caregiver responsibilities. The coalition of 
organizations noted that such stereotypes contribute to gender-based 
occupational segregation. However, both commenters asserted that the 
rule should acknowledge that these stereotypes are not limited to 
caregivers of children and that caregiving stereotypes also include 
assumptions such as that men do not have caregiving responsibilities or 
that women with caregiving responsibilities are less capable, 
successful, or committed to their jobs than men without such 
responsibilities.
    Response: CRC agrees that the examples of discrimination based on 
stereotypes mentioned by the commenters may constitute unlawful sex 
discrimination. However, CRC does not find it necessary to alter the 
proposed examples or to add further examples to the final rule. The 
examples of sex-based caregiving stereotypes provided in paragraphs 
(d)(4), (5), and (6) are illustrative, not exhaustive. The 
nondiscrimination principle spelled out in Sec.  38.7(d)--that 
discrimination on the basis of sex stereotypes is a form of

[[Page 87154]]

unlawful sex discrimination--reasonably covers all of the commenters' 
suggestions. Further, Sec.  38.7(d)(4) establishes the application of 
that general principle to the particular category of ``sex stereotypes 
about caregiver responsibilities,'' with no limitation on the gender of 
the caregiver or the age or identity of the individual being cared for. 
Therefore, CRC adopts Sec.  38.7(d)(4), (5), and (6) as proposed in the 
final rule, except that it makes a technical correction to Sec.  
38.7(d)(4) to change ``sex assumption'' to ``sex-based assumption.'' 
CRC intends no substantive change by making this technical revision.
    Proposed Sec.  38.7(d)(7) addressed denial of access or other 
adverse treatment based on sex stereotyping, including the belief that 
a victim of domestic violence would disrupt the program or activity or 
be unable to access any aid, benefit, service, or training. CRC 
received comments supporting this example and recommending 
modifications.
    Comments: The coalition of eighty-six women's, workers', and civil 
rights organizations; a group of ten advocacy organizations and a 
union; and an individual advocacy organization welcomed the addition of 
this example, which commenters noted would enhance survivors' safety 
and economic security. The coalition of organizations and the 
individual advocacy organization recommended that CRC provide 
additional illustrative examples and further discussion of the effects 
of this discrimination, specifically ``examples of how sex 
discrimination or sex stereotyping can manifest when both the victim 
and the abusive partner access or participate in the same program or 
activity.''
    Response: CRC does not find it necessary to alter the proposed 
example in Sec.  38.7(d)(7) or to add examples to the final rule. The 
list of examples provided in Sec.  38.7(d) is not exhaustive. Moreover, 
the proposed regulatory text encompasses the commenters' suggestions. 
Section 38.7(d) states the overall principle that discrimination on the 
basis of sex stereotypes is a form of unlawful sex discrimination. 
Section 38.7(d)(7) offers just one example of the application of that 
principle to sex stereotyping of victims of domestic violence. CRC 
believes that the statement of the principle and the provision of this 
example provide adequate guidance to recipients regarding their 
obligation to refrain from discriminating against victims of domestic 
violence on the basis of sex stereotypes. Therefore, CRC adopts Sec.  
38.7(d)(7) as proposed in the final rule.
    Proposed Sec.  38.7(d)(8) addressed adverse treatment of a woman 
because she does not dress or talk in a feminine manner. CRC received 
no comments on this provision and adopts it in the final rule.
    Proposed Sec.  38.7(d)(9) addressed denial of access or other 
adverse treatment because an individual does not conform to stereotypes 
about individuals of a certain sex working in a particular job, sector, 
or industry. CRC received comments supporting and recommending 
modifications to this example.
    Comments: Several commenters began by noting that gender-based 
occupational segregation and wage disparities remain widespread, and 
they asserted that the federal workforce development system reinforces 
these problems. For example, comments submitted by the coalition of 
eighty-six organizations, a group of ten organizations and a union, an 
individual advocacy organization, and an organization representing 
tradeswomen cited a research study finding that women are often trained 
for occupations considered traditionally ``female'' while men are 
trained for occupations considered traditionally ``male'' and that, as 
a result, women's earnings are substantially lower than men's once they 
exit federal workforce training services.\192\ These commenters 
commended CRC for including the example of sex-based stereotyping in 
Sec.  38.7(d)(9) because they identified such stereotypes as 
contributing to these obstacles. However, the coalition of 
organizations and the two individual organizations requested that CRC 
include further examples of the ways in which occupational segregation 
is perpetuated in training programs and workplaces, ``such as the 
isolation of women within training programs; the tracking of women and 
men into certain positions within a training program based on 
assumptions about their capabilities and skills because of their sex; 
denial of, or unequal access to, networking, mentoring, and/or other 
individual development opportunities for women; unequal on-the-job 
training and/or job rotations; and applying nonuniform performance 
appraisals that may lead to subsequent opportunities for advancement.'' 
Noting the importance of sharing information about ``nontraditional'' 
training opportunities, all three of these commenters recommended that 
CRC add an example addressing the failure ``to provide information 
about services or training opportunities in the full range of services 
and opportunities offered by the recipient.''
---------------------------------------------------------------------------

    \192\ The commenters cited Institute for Women's Policy 
Research, Workforce Investment System Reinforces Occupational Gender 
Segregation and the Gender Wage Gap (2013), available at http://www.iwpr.org/publications/pubs/workforce-investment-system-reinforces-occupational-gender-segregation-and-the-gender-wage-gap.
---------------------------------------------------------------------------

    Response: CRC agrees that gender-based occupational segregation 
remains widespread:

    In 2012, nontraditional occupations for women employed only six 
percent of all women, but 44 percent of all men. The same imbalance 
holds for occupations that are nontraditional for men; these employ 
only 5 percent of men, but 40 percent of women. Gender segregation 
is also substantial in terms of the broad sectors where men and 
women work: three in four workers in education and health services 
are women, nine in ten workers in the construction industry and 
seven in ten workers in manufacturing are men.\193\
---------------------------------------------------------------------------

    \193\ Ariane Hegewisch & Heidi Hartmann, Institute for Women's 
Policy Research, Occupational Segregation and the Gender Wage Gap: A 
Job Half Done (2014), available at http://www.iwpr.org/publications/pubs/occupational-segregation-and-the-gender-wage-gap-a-job-half-done (citations omitted).

CRC is aware of the research studies cited by the commenters indicating 
that the federal workforce development system contributes to gender-
based occupational segregation and the wage gap. With this final rule, 
CRC aims to enforce the WIOA nondiscrimination and equal opportunity 
provisions to combat these problems whenever they are the result of 
discrimination. CRC agrees with a commenter that job training programs 
``can help end the occupational segregation that has kept women in 
lower paying fields by providing them training to enter nontraditional 
jobs that will increase their earnings and employability.''
    CRC also agrees that the examples of recipient practices identified 
by the commenters may exacerbate gender-based occupational segregation, 
which may in turn contribute to pay disparities. In particular, because 
it is key that recipients share information about any aid, benefit, 
service, or training without regard to stereotypes about individuals of 
a particular sex working in a specific job, sector, or industry, CRC 
adds to Sec.  38.7(d)(9) the phrase ``failing to provide information 
about'' any aid, benefit, service, or training based on such 
stereotypes. With regard to the other examples suggested by the 
commenters, the rule adequately addresses such practices when they 
constitute sex discrimination. For example, to the extent that such 
practices constitute adverse treatment based on sex stereotypes, Sec.  
38.7(d)(9) as

[[Page 87155]]

revised encompasses them. Similarly, to the extent that such practices 
reflect distinctions based on sex, they are prohibited by Sec.  
38.7(b), and some are specifically addressed by the example in Sec.  
38.7(b)(4).
    Additionally, for State Programs, including providers of services 
and benefits as part of a State Program such as one stops and eligible 
training providers,\194\ the Governor is required by Sec.  38.51 to 
monitor annually recipients' compliance with WIOA Section 188 and this 
rule to ensure equal opportunity, including investigating any 
significant differences in participation in the programs, activities, 
or employment provided by the recipients to determine whether the 
differences appear to be caused by discrimination.
---------------------------------------------------------------------------

    \194\ Please note there is a definition of ``State Programs'' 
specific to this regulation at Sec.  38.4(kkk).
---------------------------------------------------------------------------

    CRC further notes that the prohibition on sex discrimination is not 
the only tool available to combat gender-based occupational 
segregation. For example, the affirmative outreach provision in Sec.  
38.40 requires that recipients take appropriate steps to ensure they 
are providing equal access to programs and activities, including 
reasonable efforts to include persons of different sexes.
    For these reasons, CRC adopts the example in Sec.  38.7(d)(9) but 
modifies it to include a recipient's failure to provide information 
about any aid, benefit, service, or training based on sex stereotypes.
    Finally, CRC received comments proposing additions to Sec.  38.7(d) 
addressing sex stereotyping based on sexual orientation.
    Comment: Eight commenters--the coalition of eighty-six women's, 
workers', and civil rights organizations; six individual advocacy 
organizations; and one health organization--urged CRC to address sex 
stereotyping based on sexual orientation in Sec.  38.7(d). 
Specifically, they recommended that CRC incorporate an example from 
OFCCP's proposed rule on Discrimination on the Basis of Sex addressing 
``adverse treatment of an individual because the individual does not 
conform to sex-role expectations by being in a relationship with a 
person of the same sex.'' \195\ Commenters reasoned that inclusion of 
such language would not only reflect federal case law and EEOC policy 
but would also provide consistency and clarity across the Department's 
programs.
---------------------------------------------------------------------------

    \195\ U.S. Dep't of Labor, Office of Fed. Contract Compliance 
Programs, Discrimination on the Basis of Sex; Proposed Rule, 80 FR 
5246, 5279, Jan. 30, 2015 (proposed 40 CFR 60-20.7(a)(3)).
---------------------------------------------------------------------------

    Response: CRC notes that, in its final rule, OFCCP did not adopt 
the example suggested by the commenters. Rather, OFCCP amended the 
proposed example to cover adverse treatment of employees or applicants 
based on their sexual orientation where the evidence establishes that 
the discrimination is based on gender stereotypes.\196\ OFCCP explained 
that it made this change in light of the legal framework following from 
Price Waterhouse, discussed above with regard to sexual orientation and 
sex-based stereotypes in connection with Sec.  38.7(a), as well as for 
consistency with the position taken by the U.S. Department of Health 
and Human Services in its rule implementing Section 1557 of the 
Affordable Care Act.\197\ For the same reasons, CRC adopts in the final 
rule Sec.  38.7(d)(10), a new example addressing adverse treatment of 
an applicant, participant, or beneficiary based on sexual orientation 
where the evidence establishes that the discrimination is based on 
gender stereotypes.
---------------------------------------------------------------------------

    \196\ See 40 CFR 60-20.7(a)(3).
    \197\ OFCCP Sex Discrimination Final Rule, supra note 19, at 
39138; see HHS Nondiscrimination Final Rule, supra note 18, at 
31389-90.
---------------------------------------------------------------------------

Summary of Regulatory Changes
    For the reasons set forth above and in the NPRM, and considering 
the comments received, CRC finalizes Sec.  38.7 as follows: CRC adopts 
Sec.  38.7(a) as proposed, without modification. CRC adopts Sec.  
38.7(b) as proposed, with the following modifications: In paragraph 
(b)(5), removing a phrase stating that the use of gender-specific terms 
for jobs always constitutes discrimination; in paragraph (b)(7), adding 
a cross-reference to Sec.  38.8, on pregnancy-based discrimination; in 
paragraph (b)(8), replacing ``must'' with ``may'' to reflect that 
recipients are permitted but not required to provide separate or 
single-user restrooms or changing facilities; and in paragraph (b)(9), 
clarifying that the access requirement applies not just to restrooms 
but also to locker rooms, showers, and similar facilities. CRC adopts 
Sec.  38.7(c) as proposed, with the following modifications: Making 
technical corrections to align the wording of the standard with Title 
IX case law and to use the same disparate impact language that is used 
elsewhere in the rule; adding a sentence introducing a nonexhaustive 
list of examples; and adding new paragraph (c)(1), an example 
addressing height or weight qualifications, and new paragraph (c)(2), 
an example addressing strength, agility, or other physical 
requirements. CRC adopts Sec.  38.7(d) as proposed, with the following 
modifications: Making a technical correction in paragraph (d)(2) to 
clarify that harassment is a form of adverse treatment; making a 
technical correction in paragraph (d)(4) to insert the word ``based'' 
in ``sex-based assumption''; adding failure to provide information 
about any aid, benefit, service, or training to the example in 
paragraph (d)(9) of adverse treatment on the basis of stereotypes about 
individuals of a particular sex working in a specific job, sector, or 
industry; and adding new paragraph (d)(10), an example addressing 
adverse treatment of an individual based on sexual orientation where 
the evidence establishes that the discrimination is based on gender 
stereotypes.
Discrimination Prohibited Based on Pregnancy Sec.  38.8
    Proposed Sec.  38.8 addressed discrimination on the basis of 
pregnancy. Two commenters--the coalition of eighty-six women's, 
workers', and civil rights organizations and the group of ten advocacy 
organizations and a union--praised CRC's inclusion of this section 
devoted to pregnancy discrimination. One commenter noted that the 
proposed section ``provides clarity as to recipients' legal obligations 
toward pregnant WIOA applicants, participants, and employees . . . and 
is in line with current law.''
    The proposed introductory paragraph to Sec.  38.8 stated the 
general principle that adverse treatment based on pregnancy, 
childbirth, and related medical conditions, including childbearing 
capacity, in a WIOA Title I-financially assisted program or activity is 
sex discrimination and is thus prohibited. CRC received one comment 
suggesting an addition to this statement.
    Comment: The coalition of eighty-six women's, workers', and civil 
rights organizations recommended that CRC state the full PDA 
nondiscrimination standard in the first paragraph of Sec.  38.8, 
``including that recipients are required to treat applicants, program 
participants, and employees of childbearing capacity and those affected 
by pregnancy, childbirth, or related medical conditions the same for 
all employment-related purposes as other persons not so affected but 
similar in their ability or inability to work.''
    Response: As explained previously in this preamble, the PDA governs 
the nondiscrimination obligations of a program or activity receiving 
federal financial assistance only in the employment context. However, 
within that context, CRC agrees with the

[[Page 87156]]

commenters that the nondiscrimination standard of the PDA applies, and 
indeed, CRC's intention was to incorporate that standard in proposed 
Sec.  38.8.\198\ Therefore, CRC adds, to the introductory paragraph of 
Sec.  38.8 in the final rule, a sentence stating the PDA's 
nondiscrimination standard regarding the employment context. The 
introductory paragraph should therefore be understood to state that CRC 
applies, in all circumstances, the general principle that adverse 
treatment based on pregnancy, childbirth, and related medical 
conditions, including childbearing capacity, is prohibited sex 
discrimination and that CRC applies the nondiscrimination standard of 
the PDA (which specifically considers individuals' ``ability or 
inability to work'') to recipients' covered employment practices.
---------------------------------------------------------------------------

    \198\ See 85 FR 4494, 4511, Jan. 26, 2016.
---------------------------------------------------------------------------

    The introductory paragraph to proposed Sec.  38.8 also provided a 
nonexhaustive list of related medical conditions.\199\ CRC received one 
comment suggesting additions to this list.
---------------------------------------------------------------------------

    \199\ The proposed paragraph also provided that a pregnancy-
related medical condition may be a disability, cross-referencing 
Sec.  38.4(q)(3)(ii). Comments on this provision are discussed supra 
in connection with that paragraph's definition of disability.
---------------------------------------------------------------------------

    Comment: The coalition of eighty-six organizations requested that 
CRC include the following additional examples of pregnancy-related 
medical conditions to provide recipients with greater clarity: 
``impairments of the reproductive system that require a cesarean 
section, cervical insufficiency, pregnancy-related anemia, pregnancy-
related sciatica, pregnancy-related carpal tunnel syndrome, gestational 
diabetes, nausea that can cause severe dehydration, abnormal heart 
rhythms, swelling due to limited circulation, pelvic inflammation, 
symphysis pubis dysfunction, breech presentation, pregnancies 
characterized as `high-risk,' and depression (including but not limited 
to post-partum depression).''
    Response: CRC declines to include additional examples in the list 
of related medical conditions. As the commenters acknowledged, the list 
in proposed Sec.  38.8 is illustrative rather than exhaustive. When any 
of the suggested conditions are related to pregnancy or childbirth, the 
rule will encompass them.
    Proposed paragraphs (a)-(d) of Sec.  38.8 provided a nonexhaustive 
list of examples of unlawful pregnancy discrimination.
    Proposed Sec.  38.8(a) addressed refusing to provide any aid, 
benefit, service, or training on the basis of pregnancy or childbearing 
capacity. Proposed Sec.  38.8(b) addressed limiting an individual's 
access to any aid, benefit, service, or training based on that 
individual's pregnancy, or requiring a doctor's note for a pregnant 
individual to begin or continue participation when a doctor's note is 
not required for similarly situated nonpregnant individuals. Proposed 
Sec.  38.8(c) addressed denying access to any aid, benefit, service, or 
training, or requiring termination of participation in a program or 
activity, when an individual becomes pregnant or has a child. CRC 
received no comments on these three examples, and it adopts them in the 
final rule without change.
    Proposed Sec.  38.8(d) addressed denial of accommodations or 
modifications to a pregnant applicant or participant who is temporarily 
unable to participate in some portions of a program or activity because 
of pregnancy, childbirth, and/or related medical conditions, when such 
accommodations or modifications are provided, or required to be 
provided, to other participants not so affected but similar in their 
ability or inability to participate. CRC received two comments 
supporting the inclusion of this example and agreeing with CRC that the 
example aligns the rule with the Supreme Court's decision in Young v. 
United Parcel Service.\200\
---------------------------------------------------------------------------

    \200\ 135 S. Ct. 1338 (2015).
---------------------------------------------------------------------------

    According to Young, it is a violation of Title VII for an employer 
to deny alternative job assignments, modified duties, or other 
accommodations to employees who are unable to perform some of their job 
duties because of pregnancy, childbirth, or related medical conditions 
when (1) the employer provides such accommodations to other employees 
whose abilities or inabilities to perform their job duties are 
similarly affected, (2) the denial of accommodations ``impose[s] a 
significant burden'' on employees affected by pregnancy, childbirth, or 
related medical conditions, and (3) the employer's asserted reasons for 
denying accommodations to such employees ``are not sufficiently strong 
to justify the burden.'' \201\ The Court explained as follows the 
evidence required to prove that the employer's proffered reason is 
pretextual:
---------------------------------------------------------------------------

    \201\ Id. at 1354.

    We believe that the plaintiff may reach a jury on this issue by 
providing sufficient evidence that the employer's policies impose a 
significant burden on pregnant workers, and that the employer's 
``legitimate, nondiscriminatory'' reasons are not sufficiently 
strong to justify the burden, but rather--when considered along with 
the burden imposed--give rise to an inference of intentional 
discrimination.
    The plaintiff can create a genuine issue of material fact as to 
whether a significant burden exists by providing evidence that the 
employer accommodates a large percentage of nonpregnant workers 
while failing to accommodate a large percentage of pregnant workers. 
Here, for example, if the facts are as Young says they are, she can 
show that UPS accommodates most nonpregnant employees with lifting 
limitations while categorically failing to accommodate pregnant 
employees with lifting limitations. Young might also add that the 
fact that UPS has multiple policies that accommodate nonpregnant 
employees with lifting restrictions suggests that its reasons for 
failing to accommodate pregnant employees with lifting restrictions 
are not sufficiently strong--to the point that a jury could find 
that its reasons for failing to accommodate pregnant employees give 
rise to an inference of intentional discrimination.\202\
---------------------------------------------------------------------------

    \202\ Id. at 1354-55.

    CRC will apply this framework when analyzing pregnancy-based sex 
discrimination allegations that seek to show disparate treatment 
related to accommodation requests by using indirect evidence in the 
employment context. CRC solicited public comments on operationalizing 
the pretext analysis described in Young and received one responsive 
comment.
    Comment: The coalition of eighty-six organizations stated that 
``the rule proposed in Sec.  38.8 appropriately reflects the Young 
standard.'' Nevertheless, the organizations suggested that CRC clarify 
several points about the pretext analysis: Evidence that an employer 
accommodates a large percentage of nonpregnant workers while failing to 
accommodate a large percentage of pregnant workers is relevant to the 
determination of whether an employer's policy or practice imposes a 
significant burden on pregnant workers. The commenters cautioned that 
the Court's language focused on a ``large percentage,'' not a 
``majority.'' The commenters further noted that other evidence could 
also be relevant to the determination of a significant burden, such as 
whether the employer has multiple policies accommodating nonpregnant 
workers but not accommodating pregnant workers, or whether an 
employer's policies would reasonably be expected to result in 
accommodating a large percentage of nonpregnant workers and denying 
accommodations for a large percentage of pregnant workers.
    Response: CRC agrees that the commenters' statements as 
characterized above are consistent with

[[Page 87157]]

the Court's decision. CRC will consider these points when analyzing 
pregnancy-based sex discrimination allegations in the employment 
context that seek to show disparate treatment related to accommodation 
requests by using indirect evidence.
    CRC also received one comment suggesting modifications to the 
example in proposed Sec.  38.8(d).
    Comments: The coalition of eighty-six organizations pointed to the 
possible interaction between the ADAAA and the analysis in Young, 
which, as discussed above, compares the coverage and effects of 
accommodations policies and practices on pregnant individuals and 
similarly situated nonpregnant individuals. The organizations urged CRC 
to amend Sec.  38.8(d) to require accommodations or modifications for 
pregnant individuals ``when such accommodations or modifications are 
provided, or are required to be provided by a recipient's policy or by 
other relevant laws, to other applicants or participants.'' The 
organizations asserted that the ADAAA requires recipients to 
accommodate many nonpregnant individuals who have the very same 
limitations typically experienced by pregnant individuals and that, 
combined with the standard articulated by the Court in Young, 
recipients are therefore required to provide these accommodations to 
many more pregnant individuals. The organizations specifically 
requested that CRC include, in Sec.  38.8(d), an example ``explaining 
that the ADAAA's expansive coverage means that most nonpregnant 
individuals similar in ability to work to pregnant individuals with 
physical limitations will be accommodated and recipients who refuse to 
also accommodate pregnant workers in this situation are at significant 
risk of liability.''
    Response: The EEOC has observed, and CRC agrees, that the ADAAA's 
definition of ``disability'' may not only ``make it much easier for 
pregnant workers with pregnancy-related impairments to demonstrate that 
they have disabilities for which they may be entitled to a reasonable 
accommodation under the ADA'' \203\ but may also ``expand[ ] the number 
of non-pregnant employees who could serve as comparators where 
disparate treatment under the PDA is alleged.'' \204\ However, neither 
of those possible effects alters the pregnancy discrimination analysis 
itself, which CRC believes is adequately explained by the 
nondiscrimination standard laid out in the revised introductory 
paragraph of Sec.  38.8 and in the proposed example in Sec.  38.8(d). 
Thus, CRC declines to add the example requested by the commenters. 
Furthermore, CRC notes that the related language the commenters 
suggested (``or are required to be provided by a recipient's policy or 
by other relevant laws'') already appears in the proposed regulatory 
text.
---------------------------------------------------------------------------

    \203\ EEOC Pregnancy Guidance, supra note 181, Overview of 
Statutory Protections; see also Young, 135 S. Ct. at 1348.
    \204\ EEOC Pregnancy Guidance, supra note 181, at 11.
---------------------------------------------------------------------------

    CRC does, however, make one technical change to Sec.  38.8(d) for 
the sake of consistency with other parts of Sec.  38.8. As explained 
above, the introductory paragraph to Sec.  38.8 now contains both the 
general principle of nondiscrimination on the basis of pregnancy, which 
applies in all circumstances, and the nondiscrimination standard of the 
PDA, which applies to recipients' covered employment practices. The 
specific incorporation of the PDA standard in proposed Sec.  38.8(d) is 
therefore unnecessary, and CRC revises the language to refer generally 
to similarly situated individuals, consistent with the general 
nondiscrimination principle and the language in Sec.  38.8(b).
    Finally, CRC received comments suggesting additional examples in 
Sec.  38.8.
    Comment: The coalition of eighty-six organizations recommended that 
the final rule reiterate that an accommodation policy that 
disproportionately excludes employees who need accommodations because 
of pregnancy may constitute disparate impact discrimination. The 
organizations recommended that CRC provide additional examples of this 
form of discrimination in the area of accommodations and cross-
reference the obligation to avoid disparate impact discrimination 
throughout the rule.
    Response: CRC agrees that denials of pregnancy accommodations may 
be analyzed under a disparate impact analysis as well as a disparate 
treatment analysis.\205\ As discussed previously in connection with 
Sec.  38.7(c), if a recipient's accommodation policy or practice has 
the effect of discriminating on the basis of sex (and lacks a 
substantial legitimate justification), then that policy or practice 
constitutes unlawful sex discrimination under Sec.  38.7(c) of the 
final rule. CRC therefore does not find it necessary to provide 
additional examples of disparate impact discrimination related to 
pregnancy accommodations. CRC further notes that the final rule refers 
in numerous sections to recipients' obligations to avoid policies, 
procedures, or practices that have the purpose or effect of 
discriminating on a prohibited basis--that is, to avoid both disparate 
treatment and disparate impact discrimination.\206\ CRC does not 
believe it is necessary to provide further cross-references to the 
obligation to avoid disparate impact discrimination in the final rule.
---------------------------------------------------------------------------

    \205\ See Young, 135 S. Ct. at 1345.
    \206\ See, e.g., Sec. Sec.  38.6(d), (e), (f); 38.10(a)(3); 
38.11; 38.12(e).
---------------------------------------------------------------------------

    Comment: The coalition of eighty-six organizations commended CRC 
for identifying lactation as a pregnancy-related medical condition and 
further requested an example addressing adverse treatment of 
individuals because they are breastfeeding or because they request 
accommodations to express breast milk.
    Response: CRC declines to include an additional example related to 
breastfeeding. Lactation--which is inclusive of breastfeeding--is 
listed as a ``related medical condition'' in Sec.  38.8. Moreover, the 
list of examples of unlawful pregnancy discrimination is merely 
illustrative; the fact that it does not include lactation examples does 
not mean that adverse treatment associated with lactation is not 
discriminatory. To the contrary, as lactation is a pregnancy-related 
medical condition,\207\ adverse action against individuals because they 
are breastfeeding or because they request accommodations to express 
breast milk will be considered unlawful sex discrimination under this 
rule.
---------------------------------------------------------------------------

    \207\ Equal Emp't Opportunity Comm'n v. Houston Funding II, 
Ltd., 717 F.3d 425, 430 (5th Cir. 2013) (discrimination on the basis 
of lactation is covered under Title VII generally and as a ``related 
medical condition'' under the PDA); EEOC Pregnancy Guidance, supra 
note 181, I.A.4.b.
---------------------------------------------------------------------------

    Comment: One individual commenter stated that ``women must have 
explicit guarantees of maternity leave, at least within the WIOA 
financially assisted program.''
    Response: CRC agrees that recipients should, as a best practice, 
provide appropriate leave policies. Furthermore, CRC has jurisdiction 
to consider, on a case-by-case basis, whether a recipient's covered 
leave policies are discriminatory and whether the provision of leave is 
required as a form of reasonable accommodation. Separately, CRC notes 
that employees may be entitled to unpaid leave under the Family and 
Medical Leave Act and to paid and/or unpaid leave under State law. 
However, it is outside the scope of CRC's authority to institute a 
general maternity leave requirement in this rule. CRC therefore 
declines to add this requirement to Sec.  38.8.

[[Page 87158]]

Summary of Regulatory Changes
    For the reasons set forth above and in the NPRM, and considering 
the comments received, CRC is finalizing Sec.  38.8 as proposed, with 
the following modifications: CRC is adding to the introductory 
paragraph a sentence stating that the nondiscrimination standard of the 
PDA applies to recipients' covered employment practices, and CRC is 
revising paragraph (d) to encompass the general pregnancy 
nondiscrimination standard rather than the specific PDA standard.
Discrimination Prohibited Based on National Origin, Including Limited 
English Proficiency Sec.  38.9
    The proposed rule added a section on national origin 
discrimination. Proposed Sec.  38.9(a) stated the existing obligation 
that a recipient must not discriminate on the basis of national origin 
in providing any aid, benefit, service, or training under any WIOA 
Title I-financially assisted program or activity. It also explained 
that national origin discrimination includes ``treating individual 
beneficiaries, participants, or applicants for aid, benefit, service or 
training under any WIOA Title I-financially assisted program or 
activity adversely because they (or their families or ancestors) are 
from a particular country or part of the world, because of ethnicity or 
accent (including physical, linguistic, and cultural characteristics 
closely associated with a national origin group), or because the 
recipient perceives the individual to be of a certain national origin 
group, even if they are not.''
    Comment: Several commenters, including advocacy organizations and a 
professional association, expressed general support for the provisions 
prohibiting discrimination on the basis of national origin, including 
limited English proficiency. However, several advocacy organizations 
recommended that the proposed rule be revised to explicitly state that 
denial of services based on an individual's limited English proficiency 
may constitute impermissible national origin discrimination. These 
commenters argued that this change to the regulatory text was necessary 
to clarify that recipients are subject to Title VI's prohibitions 
against national origin discrimination affecting LEP individuals, as 
reflected in current Title VI case law, as well as guidance from CRC 
and from the Department of Justice. Furthermore, these commenters 
stated that their proposed revision is particularly important in light 
of the current severe underrepresentation of LEP individuals in Title I 
job training programs and the significant language access violations 
that CRC's compliance reviews have revealed.
    Response: CRC agrees with the commenters' recommendation that, in 
addition to CRC's statement in the preamble, Sec.  38.9(a) should 
explicitly include the legal prohibition of national origin 
discrimination affecting LEP individuals. Consistent with Title VI case 
law and the DOL and DOJ guidance on ensuring equal opportunity and 
nondiscrimination for individuals who are LEP \208\ Sec.  38.9(a) now 
more clearly provides that discrimination against individuals based on 
their limited English proficiency may be unlawful national origin 
discrimination. As the proposed rule set forth, Title VI provides that 
``[n]o person in the United States shall, on the ground of race, color, 
or national origin, be excluded from participating in, be denied the 
benefits of, or be subjected to discrimination under any program or 
activity receiving Federal financial assistance.'' \209\ Indeed, the 
Supreme Court in Lau v. Nichols held that excluding LEP children from 
effective participation in an educational program because of their 
inability to speak and understand English constitutes national origin 
discrimination prohibited by Title VI and its regulations.\210\ Courts 
have consistently found that a recipient's failure to provide 
meaningful access to LEP individuals can violate Title VI's prohibition 
of national origin discrimination.\211\ As a result, the proposed rule 
indicated that the definition of national origin discrimination 
includes discrimination based on limited English proficiency but failed 
to make that explicit in Sec.  38.9(a).
---------------------------------------------------------------------------

    \208\ See DOJ LEP Guidance, supra note 23; DOL LEP Guidance, 
supra note 28, at 32291.
    \209\ 42 U.S.C. 2000d.
    \210\ 414 U.S. 563, 568-69 (1974).
    \211\ See, e.g., Colwell v. Dep't of Health & Human Servs., 558 
F.3d 1112, 1116-17 (9th Cir. 2009) (recognizing a long history of 
interpreting discrimination against LEP individuals as 
discrimination on the basis of nation origin); United States v. 
Maricopa Cnty., 915 F. Supp. 2d 1073, 1079 (D. Ariz. 2012) 
(``[L]ongstanding case law, federal regulations and agency 
interpretation of those regulations hold language-based 
discrimination constitutes a form of national origin discrimination 
under Title VI.''); Faith Action for Cmty. Equity v. Hawaii, No. 13-
00450 SOM/RLP, 2014 WL 1691622, at *14 (D. Haw. Apr. 28, 2014) 
(``The foreseeable disparate impact of the English-only policy, the 
allegedly pretextual justifications for the English-only policy, and 
the potentially derogatory comments made and the attitude allegedly 
shown by HDOT officials suffice to make Plaintiffs' claims 
plausible.''); Nat'l Multi Hous. Council v. Jackson, 539 F. Supp. 2d 
425, 430 (D.D.C. 2008) (``Longstanding Justice Department 
regulations also expressly require communication between funding 
recipients and program beneficiaries in languages other than English 
to ensure Title VI compliance.'').
---------------------------------------------------------------------------

    CRC now adds ``including limited English proficiency'' to Sec.  
38.9(a), consistent with guidance issued by CRC in 2003 advising all 
recipients of federal financial assistance from the Department of Labor 
\212\ of the Title VI prohibition against national origin 
discrimination affecting LEP individuals.\213\ This 2003 DOL LEP 
Guidance was issued pursuant to Executive Order 13166, which directed 
each federal agency that extends assistance subject to the requirements 
of Title VI to publish guidance for its respective recipients.\214\ 
Executive Order 13166 further directs that all such guidance documents 
be consistent with the compliance standards and framework detailed in 
the DOJ Policy Guidance titled ``Enforcement of Title VI of the Civil 
Rights Act of 1964--National Origin Discrimination Against Persons with 
Limited English Proficiency.'' \215\ Thus, for the reasons stated in 
the preamble to the proposed rule, and in consideration of the comment, 
we have added ``including limited English proficiency'' at the end of 
the first sentence of Sec.  38.9(a).
---------------------------------------------------------------------------

    \212\ In this instance, the term ``recipient'' is broader than 
the definition at Sec.  38.4(zz). See notes 13-17 and accompanying 
text for an explanation of the term ``recipient'' with respect to 
WIOA Title I programs and activities.
    \213\ DOL LEP Guidance, supra note 28, at 32290.
    \214\ 65 FR 50121, Aug. 16, 2000.
    \215\ 65 FR 50123, Aug. 16, 2000.
---------------------------------------------------------------------------

    Comment: In contrast, one State labor agency opposed including 
limited English proficiency in the description of what constitutes 
national origin discrimination, and objected that the proposed rule 
appeared to create a new category of national origin discrimination 
based on an individual's language of choice. The commenter asserted 
that Lau v. Nichols,\216\ the principal case upon which CRC relies to 
justify these changes, is of questionable validity because it was 
abrogated in part by Alexander v. Sandoval.\217\ Additionally, the 
commenter asserted that the proposed insertion of the phrase 
``including limited English proficiency'' would be an inappropriate use 
of rulemaking authority because it would elevate to a statutory level 
language that does not exist in the United States Code.
---------------------------------------------------------------------------

    \216\ 414 U.S. 563 (1974).
    \217\ 532 U.S. 275 (2001).
---------------------------------------------------------------------------

    Response: We disagree with the commenter's assertion calling into 
question the precedential value of Lau in light of Sandoval. CRC has 
already addressed this very issue in its 2003 DOL LEP Guidance.\218\ 
There, we agreed

[[Page 87159]]

with DOJ's determination that Sandoval did not overturn Lau with 
respect to the Title VI obligation to provide meaningful access to LEP 
individuals.\219\ Instead, Sandoval principally held that there is no 
private right of action to enforce Title VI disparate impact 
regulations.\220\ We stated in our DOL LEP Guidance that, in 
consideration of Sandoval's impact, we would continue to strive to 
ensure that federally assisted programs and activities work in a way 
that is effective for all eligible beneficiaries, including those with 
limited English proficiency.\221\ The same conclusion applies here.
---------------------------------------------------------------------------

    \218\ DOL LEP Guidance, supra note 28, at 32292.
    \219\ Id. at 32292-93.
    \220\ Id. at 32293 and note 1; Sandoval, 532 U.S. at 278.
    \221\ DOL LEP Guidance, supra note 28, at 32292.
---------------------------------------------------------------------------

    The sole question in Sandoval was ``whether private individuals may 
sue to enforce disparate-impact regulations promulgated under Title VI 
of the Civil Rights Act of 1964.'' \222\ The Supreme Court concluded 
that ``private parties may not invoke Title VI regulations to obtain 
redress for disparate-impact discrimination because Title VI itself 
prohibits only intentional discrimination.'' \223\ The decision in 
Sandoval specifically declined to address ``whether the DOJ regulation 
was authorized by Sec.  602, or whether the courts below were correct 
to hold that the English-only policy had the effect of discriminating 
on the basis of national origin.'' \224\ Sandoval did not address DOJ's 
authority to enforce the Title VI disparate impact regulations or the 
lower court decisions that an English-only policy had the effect of 
discriminating on the basis of national origin.\225\ Sandoval did not 
overturn Lau's holding that ``[l]anguage-based discrimination can 
constitute a form of national-origin discrimination under Title VI.'' 
\226\
---------------------------------------------------------------------------

    \222\ Sandoval, 532 U.S. at 278.
    \223\ Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 178 
(2005).
    \224\ Id. at 279.
    \225\ Id.
    \226\ J.D.H. v. Las Vegas Metro. Police Dep't, No. 2:13-CV-
01300-APG, 2014 WL 3809131, at *4 (D. Nev. Aug. 1, 2014), citing 
Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 1116-17 
(9th Cir. 2009), abrogated on other grounds by Sandoval, 532 U.S. 
275 (2001)) (``discrimination against LEP individuals was 
discrimination based on national origin in violation of Title VI'').
---------------------------------------------------------------------------

    CRC also disagrees with the commenter's assertion that including 
limited English proficiency in the rule would be an inappropriate use 
of rulemaking. It is well established that policies and practices that 
deny LEP individuals meaningful access to federally funded programs and 
activities may constitute unlawful national origin discrimination.\227\ 
Agencies must ensure that recipients of their federal financial 
assistance do not directly or indirectly discriminate against LEP 
individuals. To ensure they do not discriminate against LEP 
individuals, recipients must identify the appropriate language in which 
to provide language access services for each LEP individual. Therefore, 
CRC believes the term ``preferred language'' captures information that 
is relevant to serving LEP individuals, and notes that term is also 
used by States with language access laws.\228\ The commenter did not 
suggest an alternative term, but objected based upon the commenter's 
reading of Lau and Sandoval. As explained already, we disagree with the 
commenter's view of the case law on this issue. Thus, CRC declines to 
make any regulatory modifications based on the commenter's assertions.
---------------------------------------------------------------------------

    \227\ See supra notes 24-26 and accompanying text.
    \228\ For example, pursuant to the DC Language Access Act, the 
DC Office of Human Rights requires covered entities to collect data 
on the number of LEP individuals served in an annual report. See 
final rulemaking at 55 DCR 6348, June 8, 2008, as amended by final 
rulemaking published at 61 DCR 9836, Sept. 26, 2014. The question on 
the DC Office of Human Rights Complaint Form for the purposes of 
capturing this information is ``What language do you prefer to 
communicate in?'' DC Government Employment Intake Questionnaire 
Form, available at http://dcforms.dc.gov/webform/employment-intake-questionnaire-form. In California, the Dymally-Alatorre Bilingual 
Services Act requires local agencies to provide language access to 
limited English proficient speakers. Ca. Govt. Code Sec.  7290-
7299.8. The Bilingual Services Program at the California Department 
of Human Resources provides oversight, including conducting language 
surveys on implementation. Cal. Dep't of Human Res., Bilingual 
Services Program, available at http://www.calhr.ca.gov/state-hr-professionals/Pages/Bilingual-Services.aspx. See also Haw. Rev. 
Stat. sections 371-31 to -37.
---------------------------------------------------------------------------

    Proposed Sec.  38.9(b) adopted a well-established principle under 
Title VI of the Civil Rights Act of 1964 by requiring that recipients 
of federal financial assistance take reasonable steps to provide 
meaningful access to each LEP individual whom they serve or encounter. 
CRC acknowledged in the preamble to the proposed rule that its LEP 
guidance long has employed ``four factors'' when assessing the 
effectiveness of a recipient's steps to ensure meaningful access: (1) 
The number or proportion of LEP persons served or encountered in the 
eligible service population; (2) the frequency with which LEP 
individuals come in contact with the program; (3) the nature and 
importance of the program, activity, or service provided by the 
recipient; and (4) the resources available to the recipient and 
costs.\229\ CRC invited comment on this approach, particularly whether 
the four factors should instead be incorporated into the regulatory 
text, whether the weight to be accorded the ``nature and importance'' 
factor is appropriate, and whether there are additional factors that 
should be part of the analysis.
---------------------------------------------------------------------------

    \229\ See DOL LEP Guidance, supra note 28, at 32293-95.
---------------------------------------------------------------------------

    The comments and our responses regarding Sec.  38.9(b) are set 
forth below.
    Comment: One State labor agency recommended that, rather than 
leaving it to CRC to decide on appropriate factors on a case-by-case 
basis, the ``four factors'' test should be retained for purposes of 
assessing a recipient's LEP compliance. The commenter asserted that the 
``four factors'' test should be retained because it has been the rule 
for more than two decades and discarding it would create ambiguity 
leading to unnecessary legal disputes between recipients and CRC.
    Response: We disagree with the commenter's characterization that 
declining to list the ``four factors'' analysis in Sec.  38.9 will 
create ambiguity and lead to unnecessary legal disputes between 
recipients and CRC. Thus, this final rule does not include the four 
factors in regulatory text, instead outlining the general rule that the 
obligation of a recipient is to provide meaningful access in the form 
of language assistance of some type. We believe a formulaic analysis 
detracts from the application of the general rule, as well as from the 
primary weight to be placed on the nature and importance of the program 
or activity. Recipients should, and CRC will, review each situation 
based on the facts presented. The principle that recipients must take 
reasonable steps to provide meaningful access for each LEP individual 
to Title I programs and activities also existed under WIA.
    In consideration of this comment, CRC reviewed its LEP enforcement 
cases and determined that CRC has never found a recipient in violation 
for failing to perform the four factors analysis. Rather, recipients 
have been found in violation only when they fail to take reasonable 
steps to provide meaningful access. Additionally, while we recognize 
that the decision not to incorporate the four factors into the 
regulatory text may suggest a change from DOL LEP Guidance, the four 
factors and the DOL LEP Guidance may still be used as relevant 
guidelines for recipients. In Title VI, Congress delegated ``to the 
agencies in the first instance the complex determination of what sorts 
of disparate impacts upon minorities constituted sufficiently 
significant social problems, and were readily enough remediable, to 
warrant

[[Page 87160]]

altering the practices of the federal grantees that had produced those 
impacts.'' \230\ Despite the four factors' absence from the rule, CRC 
will consider a number of relevant factors, including the ``four 
factors,'' based upon the facts presented in each case.
---------------------------------------------------------------------------

    \230\ Alexander v. Choate, 469 U.S. 287, 293-94 (1985) 
(discussing Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 
(1983)).
---------------------------------------------------------------------------

    To provide guidance to recipients on our intended interpretation of 
Sec.  38.9(b), the following preamble discussion sets forth a range of 
factors that may be relevant in any given case, regarding the 
requirement to take reasonable steps to provide meaningful access to 
services provided. Recipients must take reasonable steps to provide 
meaningful language access service to each LEP individual encountered. 
Based upon CRC's experience reviewing and enforcing compliance with LEP 
language access requirements, factors that CRC may consider in 
determining compliance regarding the appropriate level of LEP services 
include, but are not limited to: The nature and importance of the 
program, activity, or service provided by the recipient, including the 
nature and importance of the particular communication at issue (this 
factor is to be given primary weight); the length, complexity, and 
context of the communication; the number or proportion of LEP persons 
served or encountered in the eligible service population; the frequency 
with which LEP individuals come in contact with the program; the 
prevalence of the language in which the individual communicates among 
those eligible to be served or likely to be encountered by the program 
or activity; the frequency with which a recipient encounters the 
language in which the individual communicates; whether a recipient has 
explored the individual's preference, if any, for a type of language 
assistance service, as not all types of language assistance services 
may work as well as others in providing an individual meaningful access 
to the recipient's program or activity; the cost of language assistance 
services and whether a recipient has availed itself of cost-saving 
opportunities; all resources available to the recipient, including its 
capacity to leverage resources within and without its organizational 
structure, or to use its negotiating power to lower the costs at which 
language assistance services could be obtained; and whether the 
recipient has taken the voluntary measure of developing a language 
access plan.\231\ With the exception of the nature and importance of 
the program or activity, we decline to assign a particular weight to 
any specific relevant factor. Instead, recipients should, and CRC will, 
consider and weigh all relevant factors, on a case-by-case basis, when 
determining whether recipients have taken reasonable steps to provide 
meaningful access to LEP individuals.
---------------------------------------------------------------------------

    \231\ See also HHS Nondiscrimination Final Rule, supra note 18, 
at 31415-16 (listing a range of similar factors that may be relevant 
in any given LEP language access case).
---------------------------------------------------------------------------

    Thus, as proposed, CRC will not include the ``four factor'' 
analysis in the regulatory text of the final rule.\232\
---------------------------------------------------------------------------

    \232\ This is consistent with HHS's approach in its recent final 
rule. See HHS Nondiscrimination Final Rule, supra note 18, at 31415-
16 (listing range of relevant factors in preamble that may be 
considered although not listed in regulatory text).
---------------------------------------------------------------------------

    Comment: A few commenters requested clarification of the 
requirements proposed in Sec.  38.9(b). A State agency asked what 
specific actions recipients will be required to take to satisfy the 
requirement to take ``reasonable steps'' to ensure meaningful access to 
LEP individuals. The commenter also asserted that the proposed rule 
fails to provide the necessary detail clarifying how many LEP 
individuals must be ``served and encountered'' to trigger the 
requirement that the recipient take these reasonable steps, and stated 
that the final rule should set a reasonable number of ``encounters'' or 
percentage of population served that communicate in a certain manner 
before requiring a recipient to have procedures in place to satisfy 
that population's specific needs.
    Response: We recognize the commenters' concerns that the proposed 
rule does not provide detail with respect to ``served or encountered'' 
but we decline to modify this provision. Recipients must take 
reasonable steps to provide meaningful access to each LEP individual. 
CRC recognizes that providing a specific number to trigger certain 
translation obligations, or detailing specific actions to take in all 
cases, could appear to benefit some recipients in meeting their 
obligations under this part, but it could also make compliance 
difficult for a small recipient or be wholly inapplicable to another.
    This provision is intended to be a flexible standard specific to 
the facts of each situation. Providing additional specificity, at least 
in the final rule, would apply rigid standards across-the-board to all 
recipients and thus jeopardize that very goal. As discussed above, in 
evaluating the scope of a recipient's obligations to provide meaningful 
access, recipients should, and CRC intends to, give substantial weight 
to the nature and importance of the program or activity, including the 
particular communication at issue, in determining the appropriate 
level, type and manner of language assistance services to be provided. 
CRC will also consider any other relevant factors on a case-by-case 
basis, as described above. CRC intends to provide technical assistance 
to the workforce system on the requirement to take reasonable steps to 
provide meaningful access for LEP individuals and will update and/or 
issue tools to assist recipients to facilitate compliance.
    For all of the foregoing reasons, and in consideration of the 
comments, regulatory modifications are unnecessary to address the 
commenters' concerns.
    Comment: A State labor agency asked for clarification on the 
meaning of ``appropriate non-English language'' within Sec.  
38.9(b)(2)(i) and (ii), including specification of whether it means 
something other than a threshold. The commenter asserted that if it 
meant something other than languages meeting the threshold of 5 percent 
or 1,000 individuals, then the requirements of these sections are cost 
prohibitive and unreasonable.
    Response: The text ``appropriate non-English'' language in Sec.  
38.9(b)(2)(i) and (ii) does not, as the commenter asks, mean a 
threshold. The use of ``appropriate'' here is not meant to be a test by 
which recipients determine whether to provide meaningful access; it 
simply refers to the language, other than English, that is being 
translated.
    Comment: Several advocacy organizations commented that the draft 
regulations do not provide sufficient direction to recipients to ensure 
that they are not only effectively providing information to LEP 
individuals but also providing meaningful access to LEP individuals to 
participate in programs or activities under Title I. These commenters 
recommended that the ``and/or'' in Sec.  38.9(b) be replaced with 
``and'' to ensure that recipients are required to take reasonable steps 
to inform LEP individuals about Title I programs and activities and to 
facilitate their participation in such programs and activities. These 
advocacy organizations also recommended that the final regulations be 
expanded to include additional guidance on the reasonable steps that 
recipients must take to ensure that LEP individuals are afforded 
meaningful access to Title I programs and activities, including adding 
the following examples of a reasonable method to Sec.  38.9(b)(2): 
``Programming that simultaneously provides English language training 
with vocational or

[[Page 87161]]

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

[[Page 87162]]

may be conveyed orally if not translated.'' For these languages, 
recipients are not obligated to provide written translations of vital 
information in advance of encountering any specific LEP individual. 
Recipients are, however, required to take reasonable steps, including 
oral translation, to provide access to vital information, once an LEP 
individual seeks to learn about, participate in, and/or access a WIOA 
Title I program or activity.
    Proposed Sec.  38.9(g)(3) stated that recipients must include a 
``Babel notice'' indicating that language assistance is available, in 
all communications of vital information, such as hard-copy letters or 
decisions or those communications posted on Web sites.
    The comments and our responses regarding Sec.  38.9(g)(1)-(3) are 
set forth below.
    Comment: Although eliminating the requirement to translate vital 
information was the commenter's preference, a State government agency 
urged CRC to, at the very least, add more flexibility for recipients to 
provide vital information through means other than hard copy and 
electronic written forms. This commenter directed CRC to existing 
guidance, which the commenter described as sufficient and as providing 
flexibility to recipients who do not have the means to keep and create 
both hard copy and electronic translations of vital information 
contained in written form. Furthermore, the commenter asserted that the 
translation requirements would divert funding currently being used to 
meet other modernization efforts (e.g., the move to online automated 
systems).
    Response: Contrary to the commenter's belief, recipients do in fact 
have flexibility to translate into either hard copy or electronic form. 
CRC believes that proposed Sec.  38.9(g) does provide that flexibility. 
The rule requires recipients to translate vital information in written 
materials into certain languages and make the translations readily 
available in hard copy, upon request, or electronically such as on a 
Web site. The intentional use of the word ``or'' allows recipients 
flexibility. CRC expects, however, that the availability and/or 
provision of translated vital information to LEP individuals will be 
comparable to that afforded to non-LEP individuals. CRC also cautions 
that the use of a Web site and web-based technology as the sole or 
primary way for individuals to obtain information may have the effect 
of denying or limiting access to LEP individuals and members of other 
protected groups, apart from LEP individuals, in violation of federal 
nondiscrimination law.\233\
---------------------------------------------------------------------------

    \233\ See U.S. Dep't of Labor, Emp't & Training Admin., 
Unemployment Insurance Program Letter No. 02-16, State 
Responsibilities for Ensuring Access to Unemployment Insurance 
Benefits (Oct. 1, 2015), available at http://wdr.doleta.gov/directives/attach/UIPL/UIPL_02-16.pdf.
---------------------------------------------------------------------------

    With respect to the commenter's concern that the requirement would 
divert funds from other modernization efforts, CRC is sensitive to the 
budgetary demands on recipients. CRC recommends that readers consult 
longstanding guidance about taking reasonable steps to ensure 
meaningful access to vital information and other aspects of programs 
and activities.
    In 2002, the DOJ LEP Guidance explained that determining 
``[w]hether or not a document (or the information it solicits) is 
`vital' may depend upon the importance of the program, information, 
encounter, or service involved, and the consequence to the LEP person 
if the information in question is not provided accurately or in a 
timely manner.'' \234\ Similarly, the DOL LEP Guidance tracked the DOJ 
Guidance as to vital document translation.\235\ To facilitate the 
process, ``recipients are encouraged to create a plan for consistently 
determining, over time and across its various activities, what 
documents are `vital' to the meaningful access of the LEP populations 
they serve.'' \236\ The 2002 DOJ LEP Guidance also explained the 
importance of ``pooling resources and standardizing documents to reduce 
translation needs, using qualified translators and interpreters to 
ensure that documents need not be `fixed' later and that inaccurate 
interpretations do not cause delay or other costs, [as well as] 
centralizing interpreter and translator services to achieve economies 
of scale . . . [which] may help reduce costs.'' \237\ Recipients were 
directed to ``carefully explore the most cost-effective means of 
delivering competent and accurate language services before limiting 
services due to resource concerns. Large entities and those entities 
serving a significant number or proportion of LEP persons should ensure 
that their resource limitations are well-substantiated before using 
this factor as a reason to limit language assistance.'' \238\ Some 
recipients may have taken greater strides in meeting their LEP 
requirements over the last 14 years; all recipients should have current 
plans, including budgetary plans, in place to meet these requirements. 
CRC is available to provide technical assistance to the workforce 
system on the requirement to take reasonable steps to provide 
meaningful access for LEP individuals and will update and/or issue 
tools to assist recipients to facilitate compliance.
---------------------------------------------------------------------------

    \234\ DOJ 2002 LEP Guidance, supra note 23, at 41463.
    \235\ DOL 2002 LEP Guidance, supra note 28, at 32298.
    \236\ DOJ 2002 LEP Guidance, supra note 23, at 41463; DOL LEP 
Guidance, supra note 28, at 32298.
    \237\ DOJ 2002 LEP Guidance, supra note 23, at 41460.
    \238\ Id.; Colwell v. Dep't of Health & Human Servs., 558 F.3d 
1112, 1129 (9th Cir. 2009) (holding recipients' allegations ``that 
they are spending money on language assistance'' was 
``insufficient'' to establish a hardship); Sandoval v. Hagan, 7 F. 
Supp. 2d 1234, 1312 (M.D. Ala. 1998) (holding recipient cannot 
establish a substantial legitimate cost concern under Title VI to 
cease the translation of exams into foreign languages when the 
recipient has a budget of over $50 million and such translations 
costs would be ``trifling'' in comparison), aff'd, 197 F.3d 484 
(11th Cir. 1999); rev'd on other grounds, Alexander v. Sandoval, 532 
U.S. 275 (2001).
---------------------------------------------------------------------------

    Comment: A State labor agency recommended against the requirements 
of Sec.  38.9(g) unless the partner is colocated within a one-stop 
center.
    Response: In response to one State labor agency's recommendation to 
delete Sec.  38.9(g) unless the partner is colocated within a one-stop 
center, we decline the recommendation but provide broader context for 
the commenter regarding the obligations of recipients. One-stop 
partners, as defined in section 121(b) of WIOA, are recipients for 
purposes of this rule 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. One-stop centers are not 
just a physical location, but may include a larger electronic network. 
Recipients, including one-stop partners, regardless of location, must 
translate vital information in accordance with Sec.  38.9(g). Written 
training materials offered or used within employment-related training 
programs as defined under Sec.  38.4(t) are excluded but recipients 
must take reasonable steps to ensure meaningful access for LEP 
individuals as stated in Sec.  38.9(b). Thus, CRC declines to make any 
regulatory modifications.
    Comment: A State agency emphasized the importance of defining 
``standardized documents'' to clarify the scope of the translation 
requirement. The commenter proposed that the term ``standardized 
documents'' be defined to mean ``static documents that are not unique 
to a case.'' Additionally, the commenter noted that it would be 
reasonable to include the standard elements of documents that may also 
contain unique, targeted, or dynamic

[[Page 87163]]

information (e.g., representative versions of common correspondence).
    Response: We agree that ``vital information in written materials,'' 
as discussed in Sec.  38.9(g)(1), may include standard language in 
certain documents, for example, template language in a benefits letter 
requesting a response from the beneficiary. However, we decline the 
commenter's recommendation to define ``standardized documents'' because 
the term is self-explanatory. We also note that the translation 
requirement regarding vital information in written materials is not 
necessarily limited to standardized documents (or standard language in 
standard documents), contrary to the commenter's suggestion in defining 
that term. For example, recipients are required to translate vital 
information in case-specific documents in certain circumstances, such 
as documents containing decisions about benefits or appeal rights. Of 
course, recipients could not and are thus not required to translate 
vital information in case-specific documents prior to the time of 
issuance as the contents of such communications cannot be discerned in 
advance.
    Comment: A State agency asked CRC to clarify whether the Babel 
notice must be translated as a vital document because previous 
communications with CRC indicated otherwise.
    Response: Proposed Sec.  38.9(g)(3) required recipients to include 
a ``Babel notice'' indicating that language assistance is available, in 
all communications of vital information, such as hard-copy letters or 
decisions, or those communications posted on Web sites. The definition 
of ``Babel notice'' in Sec.  38.4(i) clarifies that the notice must be 
in ``multiple languages.'' This requirement ensures that LEP 
individuals know how to obtain language assistance for vital 
information that has not been translated into the LEP individual's 
preferred, non-English language. Accordingly, consistent with its 
definition and like other vital information, the Babel notice must be 
translated into multiple languages. We appreciate the commenter's 
concern that CRC should ensure that all communications with respect to 
this requirement are consistent with the final rule. While we are 
unaware of any communications with recipients that contradicted these 
requirements, recipients should rely upon the requirements of 
Sec. Sec.  38.9(g)(3) and 38.4(i) going forward.
    Comment: Several advocacy organizations strongly disagreed with the 
exclusion provided in the translation requirement for training 
materials, reasoning that recipients should be required to create an 
environment in which LEP individuals can participate in training 
programs, not simply receive information about the available 
opportunities. A union recommended that CRC provide funding for the 
costs of translating training materials for LEP individuals, rather 
than exclude them from the translation requirement.
    Response: CRC appreciates the commenters' concern regarding 
translation of training materials for employment-related training 
programs. In deciding not to adopt the commenters' suggestion, and to 
keep the regulatory exception for such training materials, CRC 
considered that translation of written training materials may be 
challenging for training providers for a number of reasons, including 
the variety, size, and technical nature of training materials, and the 
cost of written translation services. CRC believes that recipients can 
take reasonable steps to provide meaningful access to employment-
related training programs without translating written training 
materials. The vital information these materials contain can be 
provided to LEP participants by oral interpretation or summarization 
during the training program itself or other steps outlined in the 
regulation text and the appendix to the regulation. Of course, 
recipients retain the option of translating training materials if they 
wish to do so.
    The final rule does not preclude recipients from translating 
training materials, and for purposes of cost, from using economies of 
scale to share translation materials and provide greater access than 
what is required under this rule. The DOJ's 2002 LEP Guidance explained 
the importance of ``pooling resources and standardizing documents to 
reduce translation needs, using qualified translators and interpreters 
to ensure that documents need not be `fixed' later and that inaccurate 
interpretations do not cause delay or other costs, [and] centralizing 
interpreter and translator services to achieve economies of scale . . . 
[which] may help reduce costs.'' \239\ As noted above, recipients were 
directed to ``carefully explore the most cost-effective means of 
delivering competent and accurate language services before limiting 
services due to resource concerns. Large entities and those entities 
serving a significant number or proportion of LEP persons should ensure 
that their resource limitations are well-substantiated before using 
this factor as a reason to limit language assistance.'' \240\ Thus, 
regulatory modifications are unnecessary, and we note that providing 
funding for specific translation projects is beyond the scope of this 
rule.
---------------------------------------------------------------------------

    \239\ DOJ 2002 LEP Guidance, supra note 23, at 41460.
    \240\ Id.
---------------------------------------------------------------------------

    In the preamble to proposed Sec.  38.9, CRC also discussed 
thresholds which would trigger a requirement to translate standardized 
vital documents into particular languages. In the proposed rule, CRC 
gave examples for consideration of thresholds based upon the number of 
languages (e.g., top ten languages spoken by LEP individuals); 
percentage of language speakers (e.g., languages spoken by at least 5 
percent of LEP individuals); the number of language speakers (e.g., 
languages spoken by at least 1,000 LEP individuals); and composite 
thresholds combining these approaches, e.g., languages spoken by at 
least 5 percent of LEP individuals or 1,000 LEP individuals, whichever 
is lower). CRC sought comment on what thresholds, if any, should be 
required, and to what geographic areas or service areas (State-level or 
lower) the threshold should apply. If thresholds were recommended, CRC 
also sought comment on the time that should be allowed for recipients 
to come into compliance with the threshold(s), including whether this 
regulation should permit recipients to implement their obligations with 
a phased-in approach.
    Comment: Without making a particular recommendation about the 
appropriate threshold, a State labor agency described relevant portions 
of the 2003 DOL LEP Guidance that the commenter thought CRC should 
consider, including examples incorporated from DOJ's LEP Guidance in 
2002. The commenter noted that the DOL LEP Guidance did not 
specifically define what is ``a significant number or portion'' of an 
LEP population, but it did describe the safe harbor provisions from the 
DOJ 2002 LEP Guidance, which the commenter asserted were reasonable; 
provided tangible guidelines for recipients; and specified that 
``strong evidence of compliance'' exists where ``[t]he DOJ recipient 
provides written translation of vital documents for each eligible LEP 
language group that constitutes five percent or 1,000, whichever is 
less, of the population of persons eligible to be served or likely to 
be affected or encountered.'' \241\ The commenter also stated that the 
existing DOL LEP Guidance explains that when

[[Page 87164]]

a recipient is determining whether a particular language should be 
subject to the translation requirement, ``it is also advisable to 
consider the frequency of different types of language contacts'' and 
that resources available to the recipient and costs are legitimate 
considerations.\242\ The commenter objected that the proposed rule 
failed to address these provisions.
---------------------------------------------------------------------------

    \241\ DOL LEP Guidance, supra note 28, at 32290 (quoting DOJ LEP 
Guidance).
    \242\ See id. at 32294.
---------------------------------------------------------------------------

    Response: CRC declines to adopt a safe harbor provision in the 
final rule. As discussed above, after considering the comments on the 
proposed rule, CRC believes that providing a specific, inflexible 
standard to trigger translation obligations may make compliance 
difficult for a small recipient or be wholly inapplicable to another.
    CRC agrees with the commenter that a number of relevant factors 
should be considered when evaluating a recipient's compliance with 
Sec.  38.9(g). As discussed regarding Sec.  38.9(b), CRC will consider 
all relevant factors (on a case-by-case basis) when evaluating whether 
a recipient has provided meaningful access for LEP individuals 
generally, and when evaluating whether the recipient has translated 
vital information into appropriate languages more specifically. Primary 
weight will be given to the nature and importance of the program or 
activity, but other factors may also be relevant in a particular case, 
including, as the commenter suggested, the LEP population in the 
service area, the frequency of different types of language contacts, 
the resources available, and costs. With regard to costs, as noted 
above, recipients must ``carefully explore the most cost-effective 
means of delivering competent and accurate language services before 
limiting services due to resource concerns. Large entities and those 
entities serving a significant number or proportion of LEP persons 
should ensure that their resource limitations are well-substantiated 
before using this factor as a reason to limit language assistance.'' 
\243\
---------------------------------------------------------------------------

    \243\ DOJ LEP Guidance, supra note 23, at 41460.
---------------------------------------------------------------------------

    In this regard, both DOL's and DOJ's LEP Guidances are useful but 
must yield in the event that they conflict with the statute or 
regulations to which they apply.\244\ Ultimately, recipients are bound 
by the obligations set forth in WIOA and this part, and CRC declines to 
specifically incorporate the guidance provisions cited by the commenter 
into this rule for all recipients.
---------------------------------------------------------------------------

    \244\ LEP guidance documents clarify preexisting Title VI 
responsibilities but do not create new obligations beyond those in 
the statute and its implementing regulations. See Colwell v. Dep't 
of Health & Human Servs., 558 F.3d 1112, 1125 (9th Cir. 2009); Nat'l 
Multi Hous. Council v. Jackson, 539 F. Supp. 2d 425, 431 (D.D.C. 
2008).
---------------------------------------------------------------------------

    Comment: Some commenters recommended that CRC adopt specific 
numerical thresholds that would trigger the obligation to translate 
vital documents in advance of encountering any specific LEP individual. 
Other commenters recommended that CRC adopt no thresholds at all. An 
individual commenter stated that the establishment of any threshold 
would result in discrimination because there would be a portion of the 
population that was not fairly served. Several advocacy organizations 
recommended that recipients be required to translate vital information 
in written materials for languages spoken by at least 500 LEP 
individuals in the service area, or for languages spoken by at least 5 
percent of LEP individuals in that area, whichever is lower. A State 
workforce agency recommended that the threshold be consistent with the 
``DOJ Civil Rights Policy,'' which we believe is a reference to the DOJ 
LEP Guidance. A State workforce agency recommended that the threshold 
be set as a percentage of language speakers based on data from the U.S. 
Census Bureau and the ongoing statistical data collected by the 
American Community Survey. After asserting that CRC should eliminate 
the requirement for the translation of vital information, a State 
agency recommended a threshold based on the percentage of LEP 
individuals state-wide if a threshold was necessary. The commenter also 
urged CRC to explicitly exempt State-level information systems and 
documents from the translation requirement, unless the adopted 
threshold was based on a percentage of LEP individuals state-wide. A 
few government agencies urged CRC to eliminate the requirement for the 
translation of vital information into multiple languages. One commenter 
recommended that CRC instead allow States to determine the most 
appropriate translation policy.
    A few State agencies asked for clarification of the meaning of 
``significant number'' as it relates to the requirement to translate 
vital information. Similarly, referencing language in Sec.  38.9(c), 
one of these State agencies asked how recipients would determine the 
languages into which they would need to translate documents.
    Response: Recipients are required to take reasonable steps to 
provide meaningful language access services for each LEP individual. To 
ensure equal opportunity for LEP individuals, and to prevent 
discrimination based on national origin, CRC declines to eliminate the 
requirement for the translation of vital information into multiple 
languages for LEP individuals. Vital information is information that is 
necessary for an individual to understand in order to obtain, or 
understand how to obtain, any aid, benefit, service or training. 
Without such information about WIOA Title I programs, individuals will 
not have meaningful access to the aid, services, benefits and training 
those programs provide. As explained above, it is well established that 
policies and practices that deny LEP individuals meaningful access to 
federally assisted programs and activities may constitute unlawful 
national origin discrimination.\245\
---------------------------------------------------------------------------

    \245\ See supra notes 24-26 and accompanying text.
---------------------------------------------------------------------------

    Therefore, recipients must take reasonable steps to provide LEP 
individuals with meaningful access to WIOA Title I programs and 
activities. While recipients, including States, are not free, as one 
commenter urged, to determine the most appropriate translation policy 
without reference to this standard, CRC's decision to forgo thresholds 
that trigger advance translation of vital documents allows recipients 
the flexibility to tailor, to their specific circumstances, the 
reasonable steps they will take to provide meaningful access to LEP 
individuals.
    Thus, in answer to one commenter's question about how recipients 
would determine the languages for which they need to translate 
documents in advance, CRC recommends that recipients create an LEP Plan 
by consulting the appendix to Sec.  38.9, the 2003 DOL LEP Guidance, as 
well as the Department of Justice's 2011 Language Access Assessment and 
Planning Self-Assessment Tool for Federally Conducted and Federally 
Assisted Programs (LEP Tool).\246\ The latter resource includes a self-
assessment that guides recipients through the process of analyzing 
demographics in the relevant geographic area; assessing the frequency 
of contact with LEP individuals; factoring the importance of the 
services provided by the recipient; and managing resources and costs.
---------------------------------------------------------------------------

    \246\ https://www.lep.gov/resources/2011_Language_Access_Assessment_and_Planning_Tool.pdf.
---------------------------------------------------------------------------

    Based on the information gathered through the self-assessment, the 
LEP Tool provides a roadmap for recipients to create an LEP Plan 
tailored to their specific circumstances, including a determination of 
which languages are encountered with sufficient frequency (or are 
spoken by a significant number

[[Page 87165]]

or proportion of the service population that is eligible or likely to 
be encountered) to require advance translation of vital information. In 
this way, recipients are more apt to fulfill their obligation to 
provide meaningful access to their programs and activities in a cost-
effective manner.
    Indeed, the DOL LEP Guidance issued in 2003 did not specifically 
define what constitutes a ``significant number or proportion of the 
eligible service population'' that would trigger the need to translate 
vital information into a particular language (in advance of 
encountering any specific LEP individual) because that number should be 
measured on a case-by-case basis. The 1999 rule similarly did not 
define the phrase or adopt a threshold. Although we have extensively 
considered whether to include thresholds that would trigger advance 
translation of vital information in written materials, as either a safe 
harbor or as an across-the-board minimum requirement, we decline to set 
such thresholds in the final rule.
    Although thresholds may improve access for some national origin 
populations, the approach does not comprehensively effectuate WIOA's 
prohibition of national origin discrimination affecting LEP 
individuals. Setting thresholds would be both under-inclusive and over-
inclusive, given the diverse range, type, and sizes of entities covered 
by Section 188 and the diverse national origin populations within the 
service areas of recipients' respective programs and activities. For 
instance, a threshold requiring all recipients, regardless of type or 
size, to provide language assistance services in languages spoken by 5 
percent of a county's LEP population could result in the provision of 
language assistance services in more languages than the entity would 
otherwise be required to provide under its obligation in Sec.  38.9(g). 
This threshold would apply regardless of the number of individuals with 
limited English proficiency who are eligible to be served or likely to 
be encountered by the recipient's program or activity and regardless of 
the recipient's operational capacity. Similarly, this threshold could 
leave behind significant numbers of individuals with limited English 
proficiency served by the recipient's program or activity, who 
communicate in a language that constitutes less than 5 percent of the 
county's limited English proficient population.
    Although some federal regulations set thresholds, those regulations 
address entities or programs of similar sizes and types.\247\ In 
comparison, WIOA and this part regulate more diverse types of 
recipients with potentially more diverse limited English proficient 
populations. CRC is concerned that significant limited English 
proficient populations might receive no or inadequate language 
assistance services under a threshold-based regulation. CRC is also 
concerned about the burden an across-the-board translation threshold 
might place on small covered entities.
---------------------------------------------------------------------------

    \247\ See 45 CFR 155.205(c)(2)(iii), (iv) (regarding HHS's 
regulation of health care exchanges); 26 CFR 1.501(r)-4(b)(5)(ii) 
(Department of the Treasury's regulation regarding hospital 
organizations and financial assistance policies); 7 CFR 272.4(b) 
(Department of Agriculture's Supplemental Nutrition Assistance 
Program).
---------------------------------------------------------------------------

    Moreover, we value the flexibility inherent in this contextualized 
approach to assess recipients' compliance with the requirement to take 
reasonable steps to provide meaningful access for LEP individuals. We 
thus decline to impose the prescriptive standards recommended by the 
commenters as inconsistent with this customized regulatory 
approach.\248\
---------------------------------------------------------------------------

    \248\ See HHS Nondiscrimination Final Rule, supra note 18, at 
31419 (declining to adopt ``thresholds for the non-English languages 
in which covered entities must provide a range of language 
assistance services'' as an approach that ``does not comprehensively 
effectuate'' the statutory prohibition of national origin 
discrimination, and instead adopting a ``contextualized approach . . 
. to assess compliance with the requirement to take reasonable steps 
to provide meaningful access'').
---------------------------------------------------------------------------

    Finally, we note that even when there is no requirement for advance 
translation in a particular language, recipients still have a duty to 
take reasonable steps to provide meaningful language access services to 
each LEP individual, once encountered, pursuant to Sec.  38.9(g)(2).
    Comment: Several advocacy organizations recommended establishing a 
threshold using data at the regulated entity's service delivery level 
to determine the appropriate languages into which to translate vital 
information. The commenters explained that State-level data may not 
necessarily reflect the wide variations in local communities.
    Response: CRC acknowledges the commenters' concern that State-level 
data are not a perfect solution to capturing the variations in local 
communities. As set forth above, however, CRC has not adopted specific 
thresholds. Thus, the commenters' concern is addressed by Sec.  38.9(g) 
and regulatory modifications are unnecessary.
    Comment: Several advocacy organizations recommended that regulated 
entities be mandated to implement requirements to translate vital 
information as soon as possible, at most within a one-year timeframe, 
reasoning that any delay is a delay in ensuring that job seekers and 
workers who are LEP have access to Title I services.
    Response: We requested comments on whether to delay enforcement of 
translation requirements in the event we required (for the first time) 
thresholds that trigger the obligation to automatically translate vital 
information into certain languages. Since we are not implementing such 
thresholds, but retaining the status quo, there is no need to delay the 
enforcement of requirements that are already in place. Accordingly, CRC 
declines to put a timeframe on translating vital documents.
    Comment: In the proposed rule, CRC sought comment on other 
methodologies for formulating language access thresholds regarding 
written materials containing vital information that would result in 
meaningful access for individuals regardless of national origin, while 
being mindful of the potential burden on recipients.
    A local workforce agency provided information about an existing 
program in Chicago. Specifically, the commenter stated that the 
diversity of employees at its one-stop center enables the center staff 
to provide on-site translation, in addition to utilizing the language 
services provided by the State-contracted service provider. 
Additionally, the commenter described the existing procedures in place 
regarding requests for language services, which enables customers to 
acquire data upon request from the service provider. The commenter 
asserted that recipients that provide on-site language services have a 
reporting process to capture the number of services needed. Finally, 
the commenter stated that recipients can capture real numbers that 
address the quantity of services provided by the workforce area by 
identifying and noting LEP individuals in their database during the 
registration process.
    Response: CRC notes that the commenter's experiences demonstrate 
that this model is a promising approach for recipients with proper 
planning and commitment to compliance.
    Comment: Finally, an advocacy organization recommended that the 
rule be revised to include certified ASL interpreter services for 
translation of vital information. The commenter explained this could 
accommodate the many individuals in the deaf community who feel that 
they are not adequately supported for success in employment due to the 
lack of effective communication of vital information.

[[Page 87166]]

    Response: As explained in connection with Sec.  38.15, providing 
sign language interpretation is specifically covered under the 
obligation to provide auxiliary aids and services to individuals with 
disabilities. Communications with individuals with disabilities must be 
as effective as communications with others. However, Sec.  38.9 does 
not address access for individuals with disabilities, only the 
prohibition on national origin discrimination, and Sec.  38.9(g) 
restates the obligation to provide translated vital information for LEP 
individuals to ensure meaningful access. For this reason, CRC declines 
to make the suggested changes.
    CRC therefore adopts Sec.  38.9(g) as proposed, except for two 
technical corrections: Changing ``make'' to ``take'' in paragraph 
(g)(1) and, in paragraph (g)(2), for consistency with the definition of 
``Babel notice,'' specifying that the Babel notice must indicate in 
multiple languages that language assistance is available.
    CRC received no comments on proposed Sec.  38.9(h) and adopts it in 
the final rule without modification.
    Proposed Sec.  38.9(i) provided that recipients should develop a 
written language access plan to ensure LEP individuals have meaningful 
access to their programs and activities, and references the appendix to 
Sec.  38.9 where CRC has provided guidance to recipients on developing 
a language access plan.
    Comment: Noting the use of the word ``should'' in Sec.  38.9(i), a 
State agency asked whether a language access plan was required or 
recommended. And, if required, the commenter asked for clarification on 
the required contents of the plan.
    Response: CRC's use of the word ``should'' is intentional. 
Developing a language access plan is not a requirement, but may be 
considered as a relevant factor among others when analyzing whether a 
recipient has afforded LEP individuals meaningful access to programs 
and activities under WIOA Title I and this part. CRC recognizes that a 
recipient may wish to conduct thorough assessments of its language 
assistance needs and comprehensively create the operational 
infrastructure to execute a variety of high quality language assistance 
services. CRC urges recipients to pursue such high standards and to 
create language access plans that will identify in advance the types 
and levels of services that will be provided in each of the contexts in 
which the recipient encounters LEP individuals. The appendix to Sec.  
38.9 provides detailed guidance to recipients on developing a language 
access plan.
    In the appendix to Sec.  38.9, CRC makes the following technical 
edits: In the first sentence of the appendix, adding the word 
``meaningful'' to match the language access standard as described 
above; in the first sentence of example 1, referring to the final rule 
instead of the proposed rule and changing ``its'' to ``their'' to 
correct a grammatical error, and in the first sentence of example 2, 
changing ``on'' to ``as to'' for the sake of clarity.
Summary of Regulatory Changes
    For the reasons set forth above and in the NPRM, and considering 
the comments received, CRC finalizes Sec.  38.9 as follows: CRC adopts 
Sec.  38.9(a) as proposed but adds the words ``including limiting 
English proficiency'' at the end of the first sentence. CRC finalizes 
proposed Sec.  38.9(b)-(f) without modification. CRC finalizes Sec.  
38.9(g) as proposed, with the exception of two technical changes; 
revising ``make'' to ``take'' in the first sentence of paragraph (g)(2) 
and clarifying that the Babel notice must be in multiple languages. CRC 
adopts proposed Sec.  38.9(h) and (i) without modification.
Harassment Prohibited Sec.  38.10
    CRC proposed a new Sec.  38.10 to provide additional direction for 
the existing obligation to prevent harassment because of all bases 
protected by WIOA Section 188 and this part. Most commenters providing 
input on this issue supported the proposed provision. An advocacy 
organization specifically supported the addition of harassment based on 
age.
    Proposed Sec.  38.10(b) defined harassment because of sex under 
WIOA broadly to include harassment based on gender identity and failure 
to comport with sex stereotypes; harassment based on pregnancy, 
childbirth, or related medical conditions; and sex-based harassment 
that is not sexual in nature but is because of sex or where one sex is 
targeted for the harassment. CRC received comments supporting, 
opposing, and recommending modifications to this paragraph.\249\
---------------------------------------------------------------------------

    \249\ In addition to the comments described in the text, CRC 
received comments supporting and opposing the inclusion in Sec.  
38.10(b) of gender identity and sexual orientation. For the same 
reasons as discussed previously in the main preamble and in 
connection with the definition of ``sex'' in Sec.  38.7(a), CRC 
retains gender identity in this provision as proposed and declines 
to add sexual orientation.
---------------------------------------------------------------------------

    Comments: Several commenters commended CRC's recognition of sex-
based harassment as a form of sex discrimination. For example, an 
organization representing tradeswomen noted that sexual harassment ``is 
a serious impediment to women's success in nontraditional jobs and job 
training.'' That commenter urged CRC to require training program 
providers to incorporate a sexual harassment prevention policy and 
training into the training program curriculum, especially in programs 
that train for male-dominated jobs. Both the women in trades 
organization and the coalition of eighty-six women's, workers', and 
civil rights organizations further suggested that CRC clarify the 
circumstances under which recipients are obligated to prevent and 
remedy sexual harassment by specific parties, such as fellow program 
participants, coworkers, and supervisors.
    Response: With regard to sexual harassment prevention policies and 
training, CRC agrees that recipients should, as a best practice, foster 
an environment in which all individuals feel safe, welcome, and treated 
fairly by developing and implementing procedures to ensure that 
individuals are not harassed because of sex. However, it is beyond the 
scope of this rule to impose a categorical requirement in regulatory 
text that all recipients take these steps. Therefore, CRC declines to 
make the suggested changes.
    CRC also declines to expand Sec.  38.10(b) to address recipients' 
liability for various parties' sexual harassment. To do so would 
require incorporation of principles of tort and agency law into the 
final rule, which CRC believes is not necessary. CRC recognizes and 
follows the principles of liability for harassment established by the 
Department of Education's Title IX guidance documents \250\ and by 
Title VII and Title IX case law.\251\
---------------------------------------------------------------------------

    \250\ See, e.g., U.S. Dep't of Educ., Office for Civil Rights, 
Dear Colleague Letter: Sexual Violence (Apr. 4, 2011), available at 
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf; Revised Sexual Harassment Guidance, supra note 63.
    \251\ Relevant Title IX cases include Davis v. Monroe County 
Board of Education, 526 U.S. 629 (1999), and Gebser v. Lago Vista 
Independent School District, 524 U.S. 274 (1998). Relevant Title VII 
cases include Vance v. Ball State University, 133 S. Ct. 2434 
(2013); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); and 
Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
---------------------------------------------------------------------------

    CRC makes a technical change to Sec.  38.10(b). As proposed, the 
regulatory text may have been unclear that harassment based on gender 
identity and harassment based on failure to comport with sex 
stereotypes can be independent forms of harassment because of sex. 
Therefore, in the final rule, the two are listed individually and 
separated by a semicolon. CRC intends

[[Page 87167]]

no substantive change by making this revision.
Discrimination Prohibited Based on Citizenship Status Sec.  38.11
    The proposed rule added a new Sec.  38.11 titled ``Discrimination 
prohibited based on citizenship status'' to provide additional 
direction to recipients regarding the protections certain noncitizens 
have from discrimination based on their citizenship status. Please note 
that other statutes and regulations may define citizenship 
discrimination differently than it is defined for the purposes of the 
final rule. CRC will enforce this provision consistent with other 
federal agencies' interpretations of their federal statutory 
eligibility requirements.
    Comment: A professional association supported expansion of 
antidiscrimination provisions regarding ethnicity to cover citizenship 
status and national origin, including limited English proficiency. The 
commenter stated that these changes recognize the full diversity of the 
U.S. workforce. Several advocacy organizations agreed that the 
prohibition on discrimination based on citizenship status provides 
greater clarity to recipients about the protection for certain 
noncitizens. The commenters were particularly supportive of the 
inclusion of individuals, such as those with work authorization through 
the Deferred Action for Childhood Arrivals initiative, who the 
commenters asserted are eligible for services under Title I and who 
should be protected from discrimination in the provision of these 
services. An individual commenter, however, argued that non-citizens 
should not be granted equal opportunities and equal status as citizens.
    Response: With respect to the bases of citizenship and national 
origin, WIOA Section 188(a)(5) expressly protects the right of citizens 
and nationals of the United States, lawfully admitted permanent 
resident aliens, refugees, asylees, and parolees, and other immigrants 
authorized by the Secretary of Homeland Security to work in the United 
States to participate in WIOA Title I programs and activities without 
being subjected to discrimination.\252\ Accordingly, the individual 
commenter's position that non-citizens should be categorically excluded 
from these protections is contrary to the specific statutory language 
of Section 188 of WIOA and beyond CRC's authority to adopt.
---------------------------------------------------------------------------

    \252\ 29 U.S.C. 3248(a)(5). Although Section 188(a)(5) refers to 
the Attorney General, Sec.  38.11 refers instead to the Secretary of 
Homeland Security because Congress transferred the authority to 
authorize aliens to work from the Attorney General to the Secretary 
of Homeland Security in the Homeland Security Act of 2002. See 
Homeland Security Act of 2002, Public Law 107-296, 8 U.S.C. 
1103(a)(1). Section 1517 of the Homeland Security Act, 6 U.S.C. 557, 
provides that a reference in any other federal law to any function 
transferred by the Act ``and exercised on or after the effective 
date of the Act'' shall refer to the Secretary of Homeland Security 
or other official or component of the Department of Homeland 
Security to whom that function is transferred. See also Clark v. 
Martinez, 543 U.S. 371, 374 n.1 (2005) (noting that, with limited 
exception, the immigration authorities previously exercised by the 
Attorney General and the former Immigration and Naturalization 
Service ``now reside in the Secretary of Homeland Security'' and the 
Department of Homeland Security).
---------------------------------------------------------------------------

Discrimination Prohibited Based on Disability Sec.  38.12
    Proposed Sec.  38.12 revised the title of this section \253\ and 
added a new paragraph (p) which incorporates the ADAAA's prohibition on 
claims of discrimination because of an individual's lack of 
disability.\254\ Overall, this section retained the language from the 
1999 and 2015 rules, which paralleled the wording of DOJ's ``General 
prohibitions against discrimination'' Title II ADA regulation, 
including the requirement that a recipient must administer WIOA Title I 
programs and activities ``in the most integrated setting appropriate to 
the needs of qualified individuals with disabilities.'' \255\ The 
``most integrated setting appropriate'' requirement must also be 
consistent with the requirements of the Rehabilitation Act, as amended 
by WIOA.
---------------------------------------------------------------------------

    \253\ See 29 CFR 37.7 (1999 rule); 29 CFR 38.7 (2015 rule).
    \254\ 42 U.S.C. 12201(g).
    \255\ 28 CFR 35.130(d); 29 CFR 37.12(d) (1999 rule); 29 CFR 
38.12(d) (2015 rule).
---------------------------------------------------------------------------

    Comment: A State agency supported the language in Sec.  38.12(d). A 
training provider commented that clarifying language should be added in 
Sec.  38.12(d) to define ``most integrated setting'' consistent with 
the ADA and the Supreme Court's opinion in Olmstead v. L.C. ex rel. 
Zimring.\256\ However, a statewide association representing community 
service providers asserted that CRC's proposed rule exceeded statutory 
authority. The commenter objected to the proposed requirements, saying 
that it would put additional restrictions on employment by mandating 
integration within not only the community, but also within the work 
unit. The commenter warned that such requirements could lead to 
individuals with disabilities being replaced by workers without 
disabilities.
---------------------------------------------------------------------------

    \256\ 527 U.S. 581 (1999).
---------------------------------------------------------------------------

    An individual commenter argued that a ``one-size-fits-all'' 
approach that assumes that integration and equalized services is the 
best solution for all individuals with disabilities will be detrimental 
to people that greatly benefit from group programs and specialized 
services.
    Indeed, a number of commenters focused on Sec.  38.12 in general, 
and Sec.  38.12(d) in particular, to comment about work for individuals 
at subminimum wage and/or in so-called ``sheltered workshops,'' which 
provide training and employment opportunities \257\ in segregated or 
``sheltered'' settings. A coalition of organizations ``urge[d] the 
Department to ensure that the proposed regulations promote competitive 
integrated employment for students and youth with disabilities.'' 
Another commenter objected:
---------------------------------------------------------------------------

    \257\ Sheltered workshops are also sometimes referred to as 
``work centers.''

    While maximizing opportunities for competitive integrated 
employment among individuals with disabilities was one of the 
central purposes of WIOA, the goal of competitive integrated 
employment is not mentioned in the nondiscrimination regulations. It 
is critical that the nondiscrimination mandates in this proposed 
rule require that covered entities provide people with disabilities 
equal opportunity to access competitive integrated employment and 
protect the rights of people with disabilities to receive a fair 
income comparable to that of other employees, be employed in 
settings that include people with and without disabilities rather 
than limited to segregated facilities, and access opportunities for 
advancement that are comparable to those of their non-disabled 
---------------------------------------------------------------------------
peers.

    Response: CRC appreciates the supportive comments we received and 
disagrees that the rule exceeds statutory authority. As discussed 
above, CRC has the authority to promulgate regulations necessary to 
implement WIOA's equal opportunity and nondiscrimination provisions 
under Section 188(e). Regarding the commenter's request to add 
clarifying language regarding ``the most integrated setting'' in light 
of the ADA and the Olmstead case, we believe this standard is clear, 
and has been so since the 1999 rule. We also believe that it is 
consistent with disability law (including Supreme Court precedent). 
Therefore, we decline to define it further. A recipient must administer 
programs and activities in the most integrated setting appropriate to 
the needs of qualified individuals with disabilities. This is an 
individualized determination that is based on the specific needs of the 
individual with a

[[Page 87168]]

disability. Overall, the provision is intended to prohibit exclusion 
and segregation of individuals with disabilities and the denial of 
equal opportunities enjoyed by others (without disabilities), based on 
presumptions, patronizing attitudes, fears, and stereotypes about 
individuals with disabilities. Consistent with this requirement, 
recipients are required to ensure that their actions are based on facts 
applicable to individuals and not on presumptions as to what a class of 
individuals with disabilities can or cannot do. We therefore disagree 
that correctly administering the obligation to operate programs and 
activities in the most integrated setting appropriate to the needs of 
qualified individuals with disabilities would result in individuals 
with disabilities being replaced by individuals without disabilities.
    Next, CRC disagrees with the belief of some commenters that the 
rule directly addresses competitive integrated employment or 
integration in the ``work unit,'' or that the rule requires in all 
cases the elimination of sheltered workshops and subminimum wage 
employment. Neither the proposed rule nor the final rule contains a 
definition for ``competitive integrated employment'' or ``work unit.'' 
It appears that one of the commenters may have been referring to a 2015 
Department of Education NPRM that addresses these issues.\258\ 
Regarding the advocacy organizations that asked CRC to require 
competitive integrated employment in the final rule, we decline to do 
so. The Rehabilitation Act as amended by WIOA, as well as the 
Department of Education's regulations implementing the Rehabilitation 
Act,\259\ defines the term ``competitive integrated employment,'' and 
moreover, competitive integrated employment of individuals with 
disabilities is an overall goal in the Rehabilitation Act as amended by 
WIOA. We note that in many instances, providing employment related 
services in non-integrated settings (such as sheltered workshops) may 
violate the ``most integrated setting appropriate'' standard in the 
Rehabilitation Act, the ADA, and this rule. For the purposes of Section 
188 of WIOA and this regulation, the ``most integrated setting 
appropriate'' standard is consistent with the requirements of the 
Rehabilitation Act and the ADA. Additionally, WIOA prioritizes and 
emphasizes competitive integrated employment. We therefore add 
explanatory references in Sec.  38.12(a)(1) and (4) to ensure 
compliance.
---------------------------------------------------------------------------

    \258\ U.S. Dep't of Educ., Office of Special Educ. & 
Rehabilitative Servs., State Vocational Rehabilitation Services 
Program; State Supported Employment Services Program; Limitations on 
Use of Subminimum Wage; Notice of Proposed Rulemaking, 80 FR 21059, 
Apr. 16, 2015.
    \259\ 34 CFR parts 316 and 463.
---------------------------------------------------------------------------

    Comment: Several commenters warned of the potential impacts of the 
proposed rule on sheltered workshops. An employment service provider 
requested that CRC delete any language in the proposed rule that states 
or implies that pre-vocational and group training services (aka 
sheltered workshops) are discriminatory towards persons with 
disabilities. The commenter stated that the language in the proposed 
rule could lead to the elimination of center-based, pre-vocational, 
sheltered training programs across the nation for individuals with 
developmental disabilities. An individual commenter agreed and stressed 
that group centered employment is not discriminatory; instead it allows 
persons with disabilities to work with their peers in a group centered 
supported environment. Similarly, another individual commenter argued 
that group work centers are not discriminatory and provide valuable 
skills for individuals with disabilities who may not be ready for the 
competitive community jobs. An individual commenter stated that the 
elimination of group work centers would exceed congressional intent and 
interfere with a person's choice in employment. Several commenters 
argued that the loss of these programs would be detrimental and cause 
more persons with disabilities to be isolated and less likely to be 
employed.
    An adult education provider argued that its facility provides 
individuals with disabilities, who do not receive funding, job training 
in the form of part-time employment at the work center. The commenter 
argued that the proposed rule could eliminate this as an option, which 
would decrease the availability of job training opportunities to 
individuals with disabilities. The commenter stressed that people with 
disabilities need on-the-job support, and without segregated job 
training for various periods of time, particularly for those who are 
not funded for services, a substantial number of individuals would 
never have the opportunity to achieve gainful and meaningful 
employment.
    Response: While there are specific provisions in the 2014 
reauthorization of the Rehabilitation Act that impact the eligibility 
of certain individuals to work in so-called sheltered workshops, there 
are no specific provisions in the Section 188 rule that either directly 
approve or disapprove of work in such settings. Rather, the integration 
requirement of Sec.  38.12(d) requires recipients to administer their 
Title I--funded programs and activities in the most integrated setting 
appropriate to the needs of individuals with disabilities. As stated 
previously, this is an individualized determination that is based on 
the specific needs of the individual with a disability. Overall, the 
provision is intended to prohibit exclusion and segregation of 
individuals with disabilities and the denial of equal opportunities 
enjoyed by others, based on presumptions, patronizing attitudes, fears, 
and stereotypes about individuals with disabilities. Consistent with 
this requirement, recipients are required to ensure that their actions 
are based on facts applicable to individuals and not on presumptions as 
to what a class of individuals with disabilities can or cannot do. As 
noted earlier, the ``most integrated setting appropriate'' requirement 
must also be consistent with the requirements of the Rehabilitation Act 
as amended by WIOA.
    Comment: An individual commenter stated that the proposed rule 
would eliminate employment choices for persons with disabilities, 
including preventing those with severe disabilities from working in 
community rehabilitation programs. The commenter argued that all 
employment, including that paid at a subminimum wage, has value. The 
commenter argued that without work centers many individuals with 
disabilities would be stuck at home or forced to participate in 
``glorified day care.''
    Conversely, several commenters asserted that the Department should 
ensure that the proposed rules promote competitive wages for people 
with disabilities. The commenters cited statistics that showed that 
many individuals with disabilities working in sheltered workshops are 
being paid less than minimum wage, and in some cases at $0.50 per hour.
    Response: While there are specific provisions in the Fair Labor 
Standards Act and the 2014 reauthorization of the Rehabilitation Act 
that govern and impact the eligibility of certain individuals with 
disabilities to work at less than the federal minimum wage, there are 
no specific provisions in the Section 188 rule that directly address 
this issue. However, under Sec.  38.12(a), a recipient is not permitted 
to discriminate by, among other things, (1) denying a qualified 
individual with a disability the opportunity to participate in or 
benefit from any aid, benefit, service, or training; (2) affording a 
qualified individual with a disability an opportunity to participate in 
or benefit

[[Page 87169]]

from any aid, benefit, service, or training that is not equal to that 
afforded to others; (3) providing a qualified individual with a 
disability with any 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; or (4) providing different, segregated, or 
separate aid, benefit, service, 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 any aid, benefit, service, or training that is as 
effective as those provided to others, and consistent with the 
requirements of the Rehabilitation Act as amended by WIOA.
    Therefore, this rule neither directly approves nor disapproves 
specific wages for individuals with disabilities. Rather, the rule 
addresses nondiscrimination and equal opportunity on the basis of 
disability which may take wages into account on a case-by-case basis.
    In addition, CRC received a few general comments concerning the 
prohibitions on disability discrimination in proposed Sec.  38.12.
    Comment: An advocacy organization commended the Department on 
expanding inclusion of individuals who are blind or visually impaired 
within the workforce development system. The commenter stressed that 
Rehabilitation Service Administration service programs have become more 
restrictive for persons with visual impairments; therefore these 
individuals, particularly older individuals, will need to rely on the 
larger workforce development system to sustain and return to work.
    Response: CRC appreciates the feedback from the commenter. The goal 
of this rule is to ensure that when individuals with disabilities 
engage the larger workforce development system, they are able to do so 
in an accessible manner, without discrimination.
    Comment: An individual commenter recommended that the Department 
remove ``failure'' from Divisions of Vocational Rehabilitation as the 
entry point to 14(c) program participation. The commenter stated that 
not all individuals are ready to work once they complete high school 
and requiring failure would damage the individual's view of competitive 
employment. The commenter also suggested that high schools should 
continue to be able to contract with Section 14(c) certificate 
holders.\260\ The commenter noted that these programs provide 
opportunities for individuals with the most severe disabilities.
---------------------------------------------------------------------------

    \260\ Section 14(c) refers to the Fair Labor Standards Act, 29 
U.S.C. 214(c).
---------------------------------------------------------------------------

    Response: This comment refers to provisions in Section 511 of the 
Rehabilitation Act,\261\ which CRC does not implement, and which are 
therefore outside the scope of these regulations.
---------------------------------------------------------------------------

    \261\ 29 U.S.C. 794f.
---------------------------------------------------------------------------

    Comment: An individual commenter recommended that the Department 
lower or remove the threshold spending amounts for PETS services and 
allow State agencies the ability to provide services to all individuals 
with disabilities.
    Response: Threshold spending amounts regarding the services 
recipients provide to individuals with disabilities are outside the 
scope of this rule. Instead, recipients must provide aid, benefits, 
services, and training on an equal basis to qualified individuals with 
disabilities. Where reasonable accommodations or modifications are 
necessary to achieve that result, recipients must provide them absent 
undue hardship or a fundamental alteration of the program, activity, or 
service.
    Comment: A professional association supported more accessible 
services for individuals with disabilities, and urged that these 
provisions recognize the specific needs of individuals with mental 
health conditions and cognitive disabilities to ensure that they 
receive services that are specifically tailored to their needs. The 
commenter suggested additional training for program staff to help staff 
recognize appropriate training and employment opportunities for such 
individuals.
    Response: The statute and regulations require that no individual 
with a disability be excluded from participation from, denied the 
benefits of, or subjected to discrimination under any program or 
activity on the basis of disability,\262\ and that qualified 
individuals with disabilities should have the same opportunity to 
participate in or benefit from any aid, benefit, service, or 
training.\263\ By prohibiting discrimination and requiring equal 
opportunity and inclusion of individuals with disabilities, we believe 
that this final rule will ensure that all individuals with disabilities 
receive services that are tailored to their interests and abilities, 
including individuals with mental health conditions and cognitive 
disabilities. It is critical for recipients to maintain high 
expectations for program participants, and to provide opportunities 
based on the individual's interests and abilities, rather than on 
assumptions based on stereotypes regarding particular types of 
disabilities. In addition, recipients are required to provide 
reasonable modifications of policies, practices, and procedures where 
necessary to avoid discrimination against individuals with particular 
disabilities, and to provide auxiliary aids and services where 
necessary to ensure effective communication.
---------------------------------------------------------------------------

    \262\ 29 U.S.C. 3248(a)(2).
    \263\ See Sec.  38.12(a)(1).
---------------------------------------------------------------------------

    CRC agrees that training WIOA staff to understand these obligations 
is a best practice, but declines to explicitly mandate the specific 
training requested in the final rule. Each recipient is responsible for 
ensuring compliance with its obligations under WIOA and this part, 
including determining the appropriate types and frequency of staff 
training.
    Comment: An advocacy organization urged CRC to include examples of 
how some of the nondiscrimination provisions apply in the context of 
WIOA Title I--funded entities. For example, providing reasonable 
accommodations to individuals with disabilities means that American Job 
Centers must, among other things, use accessible language where 
necessary to ensure that a person with an intellectual disability can 
fully participate in and benefit from Job Center services, programs and 
activities, and must use effective engagement strategies when needed to 
ensure full participation and benefit for a person with cognitive or 
psychiatric disabilities.
    Response: The nondiscrimination provisions that apply to recipients 
under Section 188 with respect to individuals with disabilities are 
broad and expansive, effectively tracking similar nondiscrimination 
provisions in the ADA. For this reason, it is unlikely that providing a 
few examples of fact-specific discrimination within the regulatory text 
will be particularly useful. Therefore, CRC declines to provide 
additional examples in the text. However, additional examples of 
achieving universal access and equal opportunity can be found in the 
Department's recent guidance Promising Practices in Achieving Universal 
Access and Equal Opportunity: A Section 188 Disability Reference 
Guide.\264\
---------------------------------------------------------------------------

    \264\ U.S. Dep't of Labor, Promising Practices in Achieving 
Universal Access and Equal Opportunity: A Section 188 Disability 
Reference Guide, available at https://www.dol.gov/oasam/programs/crc/Section188Guide.pdf (hereinafter ``Section 188 Disability 
Reference Guide'').

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[[Page 87170]]

    For these reasons, CRC adopts Sec.  38.12 with the following 
changes: One change to paragraph (a)(1) to add an additional example 
regarding meaningful opportunities consistent with the Rehabilitation 
Act amendments in WIOA, and two changes to paragraph (a)(4): A 
grammatical correction (changing ``are'' to ``is'') and a clarification 
that the most integrated setting appropriate must be consistent with 
the Rehabilitation Act as amended by WIOA.
Accessibility Requirements Sec.  38.13
    The proposed rule added Sec.  38.13, which did not have a 
counterpart in the 1999 or 2015 rule, to address the new emphasis 
Congress placed on ensuring programmatic and physical accessibility to 
WIOA Title I-financially assisted services, programs and activities. In 
no fewer than ten provisions of Title I of WIOA, Congress referred to 
recipients' obligation to make WIOA Title I-financially assisted 
programs and activities accessible.\265\
---------------------------------------------------------------------------

    \265\ See, e.g., 29 U.S.C. 3112(b)(2)(C)(vii), 29 U.S.C. 
3122(b)(4)(A)(iii), 29 U.S.C. 3122(d)(6)(A), 29 U.S.C. 3122(d)(13).
---------------------------------------------------------------------------

    Proposed paragraph (a) addressed physical accessibility 
requirements and proposed paragraph (b) addressed programmatic 
accessibility requirements. The proposed programmatic accessibility 
language tracked language that Congress considered in 2005 in the 
context of debating amendments to WIA in an effort to improve 
accessibility to the workforce development system for individuals with 
disabilities.\266\
---------------------------------------------------------------------------

    \266\ S. Rep. No. 109-134, 2005 WL 2250857, at *11 (2005).
---------------------------------------------------------------------------

    Comment: An advocacy organization and a State agency supported 
Sec.  38.13(a)'s requirements for physical accessibility in existing 
facilities and new construction/alterations. An advocacy organization 
recommended CRC include examples of the steps recipients must take to 
ensure accessibility.
    Response: The physical accessibility requirements that apply to 
recipients under Section 188 track long-standing accessibility 
requirements under the ADA and Section 504 of the Rehabilitation Act. 
For this reason, it is unlikely that providing a few examples of the 
requirements will be particularly useful. Therefore, CRC declines to 
provide additional examples in the text. However, additional examples 
can be found in Promising Practices in Achieving Universal Access and 
Equal Opportunity: A Section 188 Disability Reference Guide.\267\
---------------------------------------------------------------------------

    \267\ Section 188 Disability Reference Guide, supra note 264.
---------------------------------------------------------------------------

    Comment: Several commenters addressed the programmatic 
accessibility requirements in Sec.  38.13(b). Advocacy organizations 
and a State agency agreed with the definition of programmatic 
accessibility in Sec.  38.13(b). Two advocacy organizations recommended 
the following change to ensure successful implementation of 
programmatic accessibility: Providing notice to individuals with 
disabilities of their right to programmatic accessibility, including 
verbal offers to provide information in an alternative format such as 
large font text, Braille, or electronic disc.
    Response: Providing unsolicited verbal offers of information in 
alternative formats is contrary to the ADA, since it reflects another's 
perception or stereotype about particular disabilities. The individual 
is always free to request such an accommodation of auxiliary aids and 
services, and the obligation to provide such is only triggered upon 
such a request. As discussed above, CRC agrees it is important to 
provide written notice of the general availability of auxiliary aids 
and services to all participants. Accordingly, as discussed above in 
Sec.  38.4(i), CRC amends the equal opportunity notice in Sec.  38.35 
to add that notification.
    Comment: An advocacy organization suggested CRC add language to the 
final rule requiring ongoing training of program staff on what 
programmatic accessibility requires including best practices in 
promoting integrated and competitive employment, disability cultural 
competency, and examples of reasonable accommodations and modifications 
to policies, practices, and procedures.
    Response: CRC agrees that training WIOA staff on programmatic 
accessibility requirements is a best practice, but declines to 
explicitly mandate that specific level of training in the final rule. 
Each recipient is responsible for ensuring compliance with its 
obligations under WIOA and this part, including determining the 
appropriate types and frequency of staff training. Recipients that are 
seeking additional guidance on these issues can consult Promising 
Practices in Achieving Universal Access and Equal Opportunity: A 
Section 188 Disability Reference Guide.\268\
---------------------------------------------------------------------------

    \268\ Section 188 Disability Reference Guide, supra note 264.
---------------------------------------------------------------------------

    Comment: The advocacy organization also suggested CRC add 
requirements regarding modification of standard equipment, technology 
or software programs used by the Title I-financially assisted program 
or activity as assessment, diagnostic, training, or skills-building 
tools.
    Response: These requirements are already contained within the rule. 
A recipient is required to take appropriate steps to ensure that 
communications with individuals with disabilities are as effective as 
communications with others, unless doing so would result in a 
fundamental alteration of a service, program, or activity.\269\ In 
addition, a recipient must provide reasonable accommodations to 
qualified individuals with disabilities, unless providing the 
accommodation would cause undue hardship.\270\ Moreover, a recipient 
must 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.\271\
---------------------------------------------------------------------------

    \269\ See Sec.  38.15(d).
    \270\ See Sec.  38.14(a).
    \271\ See Sec.  38.14(b).
---------------------------------------------------------------------------

    Comment: The advocacy organization also recommended CRC add 
requirements regarding coordinating with other State services and 
benefit delivery systems.
    Response: While CRC supports the coordination with other State 
services and benefit delivery systems as a best practice, we decline to 
require it in all cases. As discussed below, a certain level of 
coordination is required for Governors, facilitated by their State-
level Equal Opportunity Officers (and described in their 
Nondiscrimination Plans). For other recipients, CRC prefers to allow 
more flexibility to structure their compliance with WIOA Section 188 
and this part regarding such coordination.
    For these reasons, CRC adopts Sec.  38.13 as proposed, with the 
exception of a minor modification to Sec.  38.13(a) to more accurately 
describe the source of some recipients' additional obligations 
regarding accessibility requirements.
Reasonable Accommodations and Reasonable Modifications for Individuals 
With Disabilities Sec.  38.14
    With the exception of an introductory clause in one paragraph, 
proposed Sec.  38.14 retained the existing text from Sec.  37.8 in the 
1999 rule and Sec.  38.8 in the 2015 rule.

[[Page 87171]]

    Comment: Several commenters provided comments on proposed Sec.  
38.14 regarding reasonable accommodations and modifications for 
individuals with disabilities. A State agency expressed concern about 
the threshold of proof required in Sec.  38.14 to determine whether a 
modification places an undue burden on the recipient, and how that 
determination would be made. The commenter recommended modifying the 
language to incorporate the EEOC's role in evaluating the evidence 
presented on behalf of the recipient to determine the validity of their 
claim of undue hardship.
    Response: The current language is sufficient without change. The 
definition of ``undue hardship'' in Sec.  38.4 includes the factors to 
be considered in determining whether an accommodation would impose an 
undue hardship on a recipient. The threshold of proof is consistent 
with the ADA and the 1999 and 2015 rules. Requiring the EEOC to 
evaluate evidence to determine if it properly supports a claim of undue 
hardship goes beyond the scope of these regulations.
    Comment: An advocacy organization suggested specific revisions to 
proposed Sec.  38.14 to ensure accessibility and that recipients 
involve the individual seeking an accommodation in the process of 
deciding whether the requested accommodation will be provided. The 
commenter suggested additional language as follows (suggested additions 
in bold and deletions indicated with ellipses):

     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.
     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.  
38.44(rrr)(1). The decision must be accompanied by a written 
statement of the recipient's reasons for reaching that conclusion. 
The written statement must meet readability standards that reflect 
the program participant's literacy level and plainly communicate the 
actual reasoning behind a conclusion that an accommodation would 
comprise an undue hardship. The recipient must provide a copy of the 
statement of reasons to the individual or individuals who requested 
the accommodation.
     If a requested accommodation would result in undue 
hardship, the recipient must, in consultation with said 
individual(s), take . . . other actions that would not result in 
undue hardship, but would nevertheless ensure that, to the maximum 
extent possible, individuals with disabilities receive the aid, 
benefit, service, training, or employment provided by the recipient.

    Response: In paragraph (a)(2), the language is sufficient without 
change. Imposing a readability standard that reflects another's 
perception or stereotype about an individual with a disability's 
literacy level (absent a request to do so by the individual with a 
disability) is inappropriate, and contrary to the ADA and other federal 
anti-discrimination statues. The individual is always free to request 
such an accommodation or modification, and the obligation to provide 
such is only triggered upon such a request.
    In paragraph (a)(3), CRC changes the provision to state ``after 
consultation with an individual with a disability (or individuals with 
disabilities).'' This revision is consistent with the requirements 
under the ADA.
    Comment: A coalition of organizations representing the interests of 
individuals with disabilities argued that CRC needs to change the way 
covered entities handle the cost of ongoing accommodations for persons 
with disabilities. The commenters recommended that CRC implement 
regulations that encourage all entities covered under WIOA to adopt a 
centralized funding system to pay for the cost of reasonable 
accommodations for employment of persons with disabilities. The 
commenters asserted that when hiring managers have to pay for the cost 
of accommodations out of their division's budget, these managers have a 
powerful disincentive against hiring people with disabilities, 
especially those who need ongoing accommodations. Overall, the 
commenters stated that centralized funding systems would increase 
opportunities for persons with disabilities to secure jobs and 
promotions.
    Response: While we support creative ideas like a centralized 
accommodation fund that increases the availability of accommodations, 
CRC believes that mandating such a solution is not necessary to ensure 
that recipients meet their obligations to provide reasonable 
accommodations to individuals with disabilities under WIOA and this 
part, and should therefore be up to individual recipients. In addition, 
it is outside the scope of this rule to require that recipients utilize 
a particular funding system to pay for accommodations.
    Comment: A union stated that if further accommodations were 
necessitated by the proposed rule, additional funding may be needed to 
effectuate these accommodations.
    Response: The final rule creates no new obligations for recipients 
regarding reasonable accommodations and modifications that were not 
already required by existing laws. Accommodations in the rule parallel 
those already required under the ADA and Section 504 of the 
Rehabilitation Act, as well as those that were required under the 1999 
and 2015 rules.
Summary of Regulatory Changes
    For the reasons described above and in the NPRM, and considering 
the comments received, CRC finalizes Sec.  38.14 as proposed, with a 
modification to paragraph (a)(3) to clarify the consultation 
requirement.
Communications With Individuals With Disabilities Sec.  38.15
    Proposed Sec.  38.15 revised paragraphs (a) and (b) from the 1999 
and 2015 rules \272\ to be consistent with DOJ's ADA Title II 
regulations. Proposed Sec.  38.15 also contains new language regarding 
video remote interpreting services and accessible electronic and 
information technologies.
---------------------------------------------------------------------------

    \272\ See 29 CFR 37.9 (1999 rule); 29 CFR 38.9 (2015 rule).
---------------------------------------------------------------------------

    Comment: A coalition of organizations representing the interests of 
individuals with disabilities stated that part 38 of the proposed rule 
should be amended to ensure all nondiscrimination and equal opportunity 
provisions are applicable to all technological aspects in employment. 
With respect to Web sites, recipients should be required to caption all 
audio-based content, and such auditory content should also be provided 
in American Sign Language (ASL). Transcripts of video descriptions 
should be required to provide maximum access. Moreover, all relevant 
information should be fully accessible for persons with disabilities, 
including deafblind individuals.
    Response: A recipient must take appropriate steps to ensure that 
communications with individuals with disabilities are as effective as 
communications with others. A recipient must furnish appropriate 
auxiliary aids and services where necessary to accomplish this. The 
type of auxiliary aid or service necessary to ensure effective 
communication varies in accordance with the method of communication 
used by the individual; the nature, length, and complexity of the 
communication involved; and the context in which the communication is 
taking place. In determining what type of auxiliary aid and service is 
necessary, a recipient must give primary consideration to the request 
of an individual with a disability. Thus, the provision of auxiliary 
aids and services is always individually based and

[[Page 87172]]

depends on a number of factors. There is no proactive requirement 
separate from an individual's request to provide auxiliary aids and 
services. We therefore decline to make a change with respect to the 
requirements regarding the provision of auxiliary aids and services.
    Although CRC declines to require recipients to use specific Web 
site accessibility standards under this rule, recipients must ensure 
that information provided through electronic and information 
technology, such as on Web sites, is accessible to individuals with 
disabilities. In CRC's experience, where a recipient provides required 
information through Web sites, it may be difficult to ensure compliance 
with accessibility requirements without adherence to modern standards, 
such as the Section 508 Standards \273\ or the WCAG 2.0 Level AA 
guidelines,\274\ which include criteria that provide comprehensive Web 
accessibility to individuals with disabilities--including those with 
visual, auditory, physical, speech, cognitive, developmental, learning, 
and neurological difficulties. Accordingly, we strongly encourage 
recipients that disseminate information via Web sites to consider these 
specific standards as they take steps to ensure that their Web sites 
comply with the requirements of these regulations and with federal 
civil rights laws. Having considered these issues, and in the interest 
of clarity on this point, we revise the regulatory language in Sec.  
38.15(a)(5)(ii) to add examples of specific modern Web accessibility 
standards currently available.
---------------------------------------------------------------------------

    \273\ 36 CFR part 1194.
    \274\ See, e.g., http://www.w3.org/TR/WCAG20/.
---------------------------------------------------------------------------

    Comment: An advocacy organization expressed support for the 
requirements for accessible electronic and information technology. 
However, a State agency commented that the provisions requiring 
recipients to utilize electronic and information technologies, 
applications, or adaptations that incorporate accessibility features 
for individuals with disabilities could preclude training providers 
from listing their training programs because of the extra cost to 
provide accessibility to an individual with disabilities.
    Response: CRC notes that additional accessibility features will not 
necessarily cost more; in many cases the features are already built in 
or may be required by other laws. Accordingly, CRC declines to change 
the rule as suggested.
    Comment: An advocacy organization supported the use of video remote 
interpreting in the proposed rule, reasoning that the rule allows for 
the use of VRI as an alternative to a live qualified interpreter. A 
coalition of organizations representing the interests of individuals 
with disabilities stated that CRC should not utilize the DOJ's 
definition of ``VRI'' because it is inadequate and vague and could lead 
to the use of a smartphone to be used to Skype the interpreter. The 
commenters stated that this would be problematic because VRI 
effectiveness would be dependent on the size of the cell phone screen 
and effective signal strength.
    The commenters also raised numerous concerns about the 
effectiveness of VRI technology including malfunctioning of equipment 
and video quality. The commenters were concerned that the inclusion of 
VRI would lead to a decrease in onsite interpreters who have greater 
flexibility, access to environmental cues, and are not subject to 
technology or equipment malfunctions. Therefore, the commenters 
recommended that CRC add language to the final rule limiting the use of 
VRI to certain situations like brief meetings or appointments with the 
consent of the person with the disability. The commenters also stated 
that the regulations should provide guidance on how VRI should be used. 
Further, the commenters stated that VRI is not always an appropriate 
means of communication for all individuals with disabilities. The 
commenters added that any person who is given the responsibility to 
obtain an interpreter should conduct an analysis to determine whether 
VRI is appropriate based on the consumer's disability and preference 
between VRI and on-site interpreter.
    Response: The current language, which mirrors the DOJ ADA Title II 
regulations, is sufficient. A recipient must take appropriate steps to 
ensure that communications with individuals with disabilities are as 
effective as communications with others. A recipient must furnish 
appropriate auxiliary aids and services where necessary to accomplish 
this. Thus, if VRI is not appropriate for a particular individual with 
a disability, the recipient must provide a different option, absent 
undue hardship. Of course, in most cases recipients and qualified 
individuals with disabilities must in good faith engage in an 
interactive process in which they exchange relevant information so the 
recipient may determine an effective accommodation, giving primary 
consideration to the request of the individual with the disability. 
This process should reveal whether VRI is appropriate for a particular 
individual.
    Again, the type of auxiliary aid or service necessary to ensure 
effective communication varies in accordance with the method of 
communication used by the individual; the nature, length, and 
complexity of the communication involved; and the context in which the 
communication is taking place. In addition, with respect to video 
remote interpreting, there are particular requirements for how VRI 
should be used under Sec.  38.15(a)(4) that address the speed, size, 
and quality of the service, which would in many cases limit the use of 
a smart phone for VRI.
    For these reasons, CRC adopts Sec.  38.15 as proposed, except for 
modifications in Sec.  38.15(a)(5)(ii) to add examples of specific 
modern Web accessibility standards currently available, as well as 
technical changes (including a regulatory citation) \275\ in Sec.  
38.15(c).
---------------------------------------------------------------------------

    \275\ 36 CFR part 1191, appendix B, section 103.
---------------------------------------------------------------------------

Service Animals Sec.  38.16
    The proposed rule added a new Sec.  38.16 to provide direction to 
recipients regarding the obligation to modify their policies, practices 
or procedures to permit the use of a service animal by an individual 
with a disability. This section tracked the ADA Title II regulations 
issued by the DOJ regarding service animals.\276\
---------------------------------------------------------------------------

    \276\ 28 CFR 35.136.
---------------------------------------------------------------------------

    Comment: A coalition of advocacy organizations supported the 
inclusion of Sec.  38.16 regarding a recipient's obligation to modify 
policies and practices to permit the use of a service animal. Another 
advocacy organization commended the Department for using the DOJ's ADA 
regulations and guidance, particularly with regard to service animals. 
However, the organization recommended that CRC follow DOJ's guidance 
more closely and, where the WIOA context does not require differences, 
CRC should incorporate and defer to the DOJ's ADA regulations by 
specific reference.
    Response: In the interest of uniformity, the proposed rule tracked 
DOJ's ADA Title II provisions regarding service animals, as well as its 
definition of a service animal. As a matter of policy, CRC provides the 
full text of those provisions with appropriate modifications in its own 
regulations, rather than incorporating DOJ's by reference. In some 
instances, the specific DOJ provision may not be applicable to a 
recipient, or a different regulatory section may apply. In addition, 
this will prevent having to revise CRC regulations if the DOJ 
regulation is subsequently revised in a way that conflicts with this 
part.
    Comment: A State agency recommended that CRC utilize the term

[[Page 87173]]

``service dog'' to be consistent with the ADA.
    Response: While DOJ's ADA 2010 Title II regulation limited service 
animals to dogs, the regulation continued to refer to them as ``service 
animals'' and not ``service dogs'' in both the definition and the 
specific regulatory section. Thus, the proposed rule is consistent with 
DOJ's current language, and should be readily understood by recipients 
and individuals with disabilities. For these reasons, CRC declines to 
make the suggested changes to proposed Sec.  38.16.
Mobility Aids and Devices Sec.  38.17
    The proposed rule added a new Sec.  38.17 to provide direction to 
recipients regarding the use of wheelchairs and manually powered 
mobility aids by program participants and employees. The new language 
is based on the DOJ ADA Title II regulations.\277\ CRC received one 
supportive comment on this provision from a coalition of disability 
advocacy organizations, and adopts Sec.  38.17 as proposed.
---------------------------------------------------------------------------

    \277\ 28 CFR 35.137.
---------------------------------------------------------------------------

Employment Practices Covered Sec.  38.18
    CRC received no comments on this provision and, accordingly, adopts 
Sec.  38.18 as proposed, with the exception of one technical change, 
replacing ``incorporated into this part by reference'' with ``adopted 
by this part'' in paragraph (d).
Intimidation and Retaliation Prohibited Sec.  38.19
    CRC received no comments on this provision and, accordingly, adopts 
Sec.  38.19 as proposed.
Administration of This Part Sec.  38.20
    CRC received no comments on this provision and, accordingly, adopts 
Sec.  38.20 as proposed.
Interpretation of This Part Sec.  38.21
    CRC received no comments on this provision and, accordingly, adopts 
Sec.  38.21 as proposed.
Delegation of Administration and Interpretation of This Part Sec.  
38.22
    CRC received no comments on this provision and, accordingly, adopts 
Sec.  38.22 as proposed.
Coordination With Other Agencies Sec.  38.23
    CRC received no comments on this provision and, accordingly, adopts 
Sec.  38.23 as proposed.
Effect on Other Laws and Policies Sec.  38.24
    CRC received no comments on this provision and, accordingly, adopts 
Sec.  38.24 as proposed.

Subpart B--Recordkeeping and Other Affirmative Obligations of 
Recipients

Assurances
A Grant Applicant's Obligation To Provide a Written Assurance Sec.  
38.25
    Section 38.25 of the proposed rule generally retained the existing 
requirements in Sec.  38.20 for grant applicants. In Sec.  38.25(a)(1), 
CRC proposed adding language to emphasize the existing obligation that, 
as a condition of an award of financial assistance under Title I of 
WIOA, a grant applicant assures that it ``has the ability to comply 
with the nondiscrimination and equal opportunity provisions of the 
following laws and will remain in compliance for the duration of the 
award of federal financial assistance.'' CRC proposed this revision 
because the 1999 and 2015 rules did not provide that this requirement 
applies for the duration of the award.
    CRC received one comment from a coalition of organizations that 
strongly supported the revisions to the written assurance section.
    CRC adopts Sec.  38.25 as proposed with the exception of two 
technical changes: Moving the words ``by reference'' to the end of the 
last sentence in paragraph (a)(2), and adding the parenthetical phrase 
``including limited English proficiency'' following ``national origin'' 
in paragraph (a)(1)(i)(A). CRC makes the latter change for the same 
reasons as discussed above in connection with the addition of the 
phrase to Sec.  38.9(a) and for the sake of consistency with that and 
other provisions of the rule.
Duration and Scope of the Assurance Sec.  38.26 and Covenants Sec.  
38.27
    In proposed Sec. Sec.  38.26 and 38.27, CRC retained the same 
language as in the 1999 and 2015 rules,\278\ with the exception of 
revised section headings. CRC received no comments on these sections 
and therefore adopts Sec. Sec.  38.26 and 38.27 as proposed.
---------------------------------------------------------------------------

    \278\ 29 CFR 37.21 and 37.22 (1999 rule); 29 CFR 38.21 and 38.22 
(2015 rule).
---------------------------------------------------------------------------

Equal Opportunity Officers
Designation of Equal Opportunity Officers Sec.  38.28
    Section 38.28 proposed several changes to the 2015 rule's Sec.  
38.23 and the 1999 rule's Sec.  37.23 and incorporated components from 
the 2015 rule's Sec.  38.27, and the 1999 rule's Sec.  37.27. First, 
Sec.  38.28(a) proposed the requirement that the Governor designate a 
State-level EO Officer, who would report directly to the Governor. 
Paragraph (a) also required the State-level EO Officer to be 
responsible for statewide coordination of compliance with the equal 
opportunity and nondiscrimination requirements in WIOA, and that the 
State-level EO Officer have staff and resources sufficient to carry out 
these requirements. Under paragraph (b), the NPRM proposed to require 
that each recipient, with the exception of small recipients and service 
providers, designate a recipient-level EO Officer, who must have staff 
and resources sufficient to carry out the requirements of this part. 
CRC received a total of 21 comments on these proposals.
    Comment: Several State agencies requested clarification that the 
State-level EO Officer can be appointed by and report to the Governor's 
designee, rather than the actual Governor. In support of their 
position, two State agencies referenced the proposed subpart A 
definition of ``Governor'' to include ``the chief elected official . . 
. or [the Governor's] designee.'' These commenters indicated that 
allowing the State-level EO Officer to report to the Governor's 
designee, such as a director or liaison, gives State-level EO Officers 
the proper authority, visibility, and level of support needed to carry 
out their responsibilities.
    Response: CRC agrees that the definition of ``Governor'' under 
proposed Sec.  38.4(aa) included the ``Governor's designee'' as part of 
the definition of ``Governor.'' CRC has retained the reference to the 
Governor's designee in the final rule. Accordingly, the designated 
State-level EO Officer must report directly to the Governor or the 
Governor's designee, such as a director, liaison, or other 
appropriately titled official in the Governor's office, who has the 
authority of the Governor. CRC recognizes the autonomy that the 
Governors have in structuring their offices, but also emphasizes that 
State-level EO Officers must have the authority extended by the 
Governor to fulfill their responsibilities under Section 188. Because 
the Governor is ultimately responsible for ensuring compliance with the 
nondiscrimination and equal opportunity obligations within the State, 
CRC believes that the Governor is best suited to determine to whom the 
EO Officer should report.
    Comment: Several commenters argued that the proposed rule's 
requirement to have a State-level EO Officer and a recipient-level EO 
Officer was duplicative and inefficient. A State

[[Page 87174]]

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

[[Page 87175]]

visibility and support to carry out the responsibilities under this 
part.
    Response: CRC acknowledges that some States may already provide EO 
Officers with the requisite authority and resources to ensure 
compliance with nondiscrimination and equal opportunity provisions. 
However, it has been CRC's experience that often times EO Officers are 
completely removed from the reporting chain to the Governor, or the 
authority granted the EO Officer is limited to the agency which the EO 
Officer oversees. The revisions in the final rule in Sec.  38.28 
resolve these issues. By requiring State-level EO Officers to report 
directly to the Governor, who is ultimately responsible for ensuring 
nondiscrimination and equal opportunity in all State Programs, the 
Governor will be more knowledgeable about the nondiscrimination and 
equal opportunity issues faced by the WIOA Title I-financially assisted 
programs and activities and will be in a better position to effectively 
administer the required Nondiscrimination Plan in Sec.  38.54. While 
CRC is available to provide technical assistance to all recipients and 
their EO Officers, CRC declines, however, to assume from the Governor 
the obligation to monitor the authority and resources of the State-
level EO Officers. That responsibility remains with the Governor.
    Comment: One State agency said that moving the equal opportunity 
monitoring function directly under the Governor would separate the 
equal opportunity and program compliance monitoring functions between 
two different governmental entities, leading to less efficiency in 
overall program monitoring and economic inefficiencies. That State 
agency also commented that monitoring programs under WIOA is not an 
appropriate function for the Governor's office. A different State 
agency commented that it would be impractical for the State-level EO 
Officer to report directly to the Governor. Another State agency argued 
that the proposed rule failed to consider the flexibility that WIOA 
gives States to organize and administer their workforce development 
system. Several commenters expressed frustration that the proposed rule 
requires the designation of a recipient-level EO Officer for each 
recipient and does not dictate how a State must organize this function.
    Response: As mentioned above, proposed Sec.  38.28 required a 
State-level EO Officer to direct the flow of information directly to 
the Governor, who is already responsible for ensuring compliance with 
the nondiscrimination and equal opportunity provisions in part 38. CRC 
disagrees with the commenters' assertion that it is not an appropriate 
function for the Governor's Office to monitor programs. The monitoring 
and oversight obligations of the Governor have existed dating back at 
least to the 1999 rule, as has the requirement that each recipient 
designate an EO Officer.\279\ CRC believes that requiring each 
recipient to designate at least one recipient-level EO Officer is 
essential to ensure appropriate monitoring of the recipient's 
individual compliance with WIOA Section 188 and this part.
---------------------------------------------------------------------------

    \279\ 29 CFR 37.54(d)(2)(ii) (1999 rule); 29 CFR 38.54(d)(2)(ii) 
(2015 rule).
---------------------------------------------------------------------------

    CRC agrees with commenters that States should have flexibility in 
deciding the structure and function of the State-level EO Officer 
position and other recipient-level EO Officer positions, within the 
requirements of this part. For that reason, as addressed above, 
Governors have the autonomy to structure the State-level EO Officer 
position according to the needs of their States. Governors need not 
separate equal opportunity from program compliance monitoring functions 
provided that the appropriate EO Officer receives the results of the 
equal opportunity monitoring and can act appropriately to ensure equal 
opportunity and nondiscrimination. The Governor may designate a current 
EO Officer as the State-level EO Officer. This requirement does not 
mandate that the Governor create a new State-level EO Officer position 
through a new placement. An individual could serve as both the State-
level EO Officer and as a recipient-level EO Officer provided there is 
no conflict of interest \280\ and that the individual has sufficient 
staff and resources to properly perform both the duties of the State-
level EO Officer position and the recipient-level EO Officer position.
---------------------------------------------------------------------------

    \280\ Sec.  38.30 (EO Officers ``must not have other 
responsibilities or activities that create a conflict or the 
appearance of a conflict with the responsibilities of an EO 
Officer'').
---------------------------------------------------------------------------

    Furthermore, CRC has retained the definition of ``Governor'' to 
include the Governor's designee. Therefore, CRC disagrees that the new 
reporting structure is impractical. This provision allows the Governor 
the proper flexibility and discretion needed to determine the manner in 
which to delegate authority, while also providing the State-level EO 
Officer the requisite authority to ensure compliance with this part.
    Comment: A state agency argued that the revised definitions in 
Sec. Sec.  38.28 and 38.29 should be deleted because they would expand 
the number of EO Officers and increase duplication of effort and 
expense, and could discourage the participation of non-mandatory 
partners. The commenter attributed this to its belief that the proposed 
rule expanded the definition of recipient to include not just State 
Workforce Agencies, but also State-level partner agencies, State and 
local workforce boards, one-stop operators, and others. The state 
agency commented that inclusion of on-the-job training employers would 
``kill'' their programs.
    Response: Again, CRC disagrees that these provisions will result in 
a duplication of effort and expense. Recipients retain flexibility as 
to whom to designate as their recipient-level EO Officers, which 
includes the ability to restructure a current recipient-level EO 
Officer position to meet the requirements of Sec. Sec.  38.28 and 
38.29. Moreover, a recipient-level EO Officer with the requisite 
knowledge, skills and abilities coupled with the authority provided by 
reporting to the highest level of the recipient will enhance the 
recipient's ability to develop an efficient and effective 
nondiscrimination program, including coordination with other EO 
Officers to avoid duplication.
    Although the definition of ``recipient'' in proposed Sec.  38.4(zz) 
expanded to include federally operated Job Corps Centers, CRC proposed 
no other change to this definition. CRC has consistently included 
state-level partner agencies, state and local workforce investment 
boards, one-stop operators, and on-the-job training employers as part 
of the definition of ``recipient'' in the 1999 and 2015 rules. The 
inclusion of these entities in the definition of recipient remains 
appropriate. Moreover, we note that as the requirement to designate an 
EO Officer has existed, CRC believes that most large, on-the-job 
training providers are already compliant, and small providers do not 
have all of the same obligations as other recipients under WIOA and 
this part.\281\
---------------------------------------------------------------------------

    \281\ See Sec. Sec.  38.4(hhh) and 38.32.
---------------------------------------------------------------------------

    Comment: Several commenters discussed CRC's authority under WIOA to 
implement Sec.  38.28. One State agency argued that CRC did not have 
the authority under WIOA to require a State to appoint a State-level EO 
Officer, mandate that the State-level EO Officer must report directly 
to the Governor, and dictate the structure for program administration. 
Similarly, another commenter argued that Section 188 provides no 
authority for the Department to prescribe the reporting structure for 
the individual designated

[[Page 87176]]

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

[[Page 87177]]

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

[[Page 87178]]

such as the EO Liaison position in their Nondiscrimination Plans.
    Comment: An advocacy organization recommended that the EO Officer 
be provided training on disability discrimination and disability 
issues.
    Response: While CRC generally agrees that the EO Officer should, as 
a best practice, be trained on disability discrimination, CRC declines 
to single out a specific protected category about which EO Officers 
should be trained. CRC believes that the legitimate exercise of 
discretion regarding training on disability and other protected bases 
is best left with recipients. Section 38.30 only requires that the EO 
Officer possess the knowledge, skills, and abilities that are necessary 
to comply with this part. CRC notes that Sec.  38.31(f) also requires 
that EO Officers undergo training (at the recipient's expense) to 
maintain competency, which would include training related to disability 
discrimination along with all of the other protected bases under 
Section 188 and this part. Accordingly, CRC declines to specify in the 
final rule that recipients must provide disability discrimination 
training for EO Officers.
    Comment: A State agency noted that ``size'' is not defined and 
requested an explanation as to when a recipient is large enough to 
warrant a dedicated EO Officer. The commenter recommended that any 
restrictions on what an agency can and cannot do with their staff was 
overly intrusive and should be stricken.
    Response: CRC disagrees that the requirements in proposed Sec.  
38.30 are intrusive. CRC declines to modify the provision that 
precludes the EO Officer from having other responsibilities whenever 
the size of the recipient, or the size of its WIOA Title I--funded 
programs, would prevent the EO Officer from competently fulfilling the 
duties of the office. CRC in this provision has given recipients the 
flexibility to assign other duties to the EO Officer as long as those 
duties do not interfere with the EO Officer duties or present an actual 
or apparent conflict. The proposed rule does not define ``size'' as 
used in Sec.  38.30 because CRC wants to give recipients the 
flexibility to structure their workforces in the manner that best meets 
their needs, while still complying with this part. For that reason, the 
rule does not require in all cases that EO Officers be dedicated 
exclusively to their duties under this part.
    Moreover, regarding when a recipient would be considered a small 
recipient, the 1999 rule, the 2015 rule and the proposed rule defined 
``small recipient'' in Sec.  38.4(hhh) as 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. As indicated in the 2015 rule and proposed rule Sec. Sec.  
38.28(b) and 38.32, small recipients do not need to designate 
recipient-level EO Officers. Thus, any recipient who qualifies as a 
small recipient under Sec.  38.4(hhh), or as a ``service provider'' 
under Sec.  38.4(ggg), is not obligated to designate a recipient-level 
EO Officer.
Equal Opportunity Officer Responsibilities Sec.  38.31
    Most of the language in the 1999 and 2015 rules was retained in 
proposed Sec.  38.31, with some additions. Proposed Sec.  38.31 added 
new language in paragraph (d) clarifying the existing requirements that 
the EO Officer develop and publish the recipient's procedures for 
processing discrimination complaints by adding examples of specific 
procedures to be included and that the EO Officer make sure that those 
procedures are followed, including by tracking the discrimination 
complaints filed against the recipient, developing procedures for 
investigating and resolving discrimination complaints, and making 
available to the public, in appropriate languages and formats, the 
procedures for filing a complaint. Proposed paragraph (e) added to the 
EO Officer's responsibilities an outreach and education requirement, 
which recipients were already required to undertake pursuant to the 
1999 and 2015 rules.\282\ In addition, the NPRM deleted Sec.  38.25(e), 
which addressed reporting lines of authority for the Equal Opportunity 
Officer because those reporting lines are now addressed in the final 
rule under Sec. Sec.  38.28 and 38.29(a). Finally, the NPRM proposed 
language in paragraph (f) to clarify that the existing training 
obligation for the EO Officer includes EO Officer staff training. CRC 
received seven comments on these provisions.
---------------------------------------------------------------------------

    \282\ 29 CFR 37.42 (1999 rule); 29 CFR 38.42 (2015 rule).
---------------------------------------------------------------------------

    Comment: A State workforce development board supported Sec.  38.31, 
describing the requirements as well-defined. The commenter also 
recommended that this provision be added to requirements that apply to 
Equal Opportunity Liaisons. The commenter also stated that, if the 
provision was not included in the final rule, then the Department 
should consider including it within the State Nondiscrimination Plan.
    Response: While CRC generally agrees that persons other than the EO 
Officers may be involved in overseeing or monitoring compliance with 
the nondiscrimination and equal opportunity provisions as set out in 
this subpart, CRC declines to regulate each of these positions and 
their responsibilities. As mentioned in the section above, CRC does not 
regulate EO Liaisons that States may designate to help fulfill their 
obligations under part 38 unless they also serve as EO Officers. 
Instead, CRC's focus is on the EO Officer and that individual's 
responsibilities. States have the flexibility, however, to decide how 
best to incorporate EO Liaisons and their responsibilities within the 
structure of their programs. States are not prohibited from listing 
skills needed for other positions such as the EO Liaison in their 
Nondiscrimination Plans. In fact, CRC encourages this practice, but 
declines to make it a requirement.
    Comment: Some commenters requested clarification of the EO 
Officer's responsibilities. A State workforce agency asked whether 
employee complaints in the agency would be the responsibility of the 
``State EO Officer'' or other human resources staff.
    Response: The recipient-level EO Officer is responsible for 
developing and publishing the recipient's procedures for processing 
discrimination complaints, including covered employee complaints, and 
for making sure those procedures are followed as described in Sec.  
38.72. The State-level EO Officer oversees all recipient-level EO 
Officers assigned to State Programs. Since States retain flexibility to 
structure their equal opportunity staff as they deem necessary to 
comply with this part, a State could require the recipient-level EO 
Officer to process complaints, or to oversee human resources staff that 
handle complaint processing, provided no conflict of interest exists 
and human resources staff have the requisite knowledge to fulfill equal 
opportunity responsibilities. Again, the recipient-level EO Officer is 
accountable for overseeing that process, ensuring there is no conflict 
of interest, and confirming that the process complies with Section 188 
of WIOA and this part.
    Comment: One commenter asked whether the Department would allocate 
funding for trainings because the proposed rule stated that budgetary 
restrictions are not a sufficient excuse for not sending EO Officers to 
training.
    Response: As mentioned in the NPRM, EO Officers reported to CRC 
that they were unable to attend trainings for budgetary reasons. CRC 
rejected budgetary reasons as a basis for recipients to deny training 
opportunities

[[Page 87179]]

to EO Officers and their staff. CRC continues to believe that 
recipients must permit their EO Officers and staff to participate in 
such training whenever necessary to ensure that EO Officers and their 
staff have the requisite knowledge to comply with their 
responsibilities under this part. Furthermore, under proposed Sec.  
38.25 (Sec.  38.20 in the 2015 rule and Sec.  37.20 in the 1999 rule), 
in their written assurances, grant applicants agree to comply fully 
with the nondiscrimination and equal opportunity provisions in this 
part. Providing training to EO Officers and their staff is part of that 
obligation. The requirement to provide training for the EO Officer and 
staff has existed for years. Indeed, under the 2015 rule at Sec. Sec.  
38.25(f) and 38.26(d), and the 1999 rule at Sec. Sec.  37.25(f) and 
37.26(d), recipients were required to ensure that the EO Officer and 
staff were afforded the opportunity to receive the training necessary 
and appropriate to maintain competency. CRC retains this requirement in 
the final rule in Sec.  38.31(f). Allocation of funding for specific 
expenses is beyond the scope of this rule.
    Comment: A State agency requested clarification on how or whether 
the State-level EO Officer and the recipient-level EO Officer would 
coordinate monitoring activities. The commenter argued that this 
oversight could be time-consuming and costly for State agencies 
because, for example, a one-stop operator would be monitored at a 
minimum of three times a year: By the State-level EO Officer, the 
recipient-level EO Officer of at least one state-level agency partner, 
and by the local Workforce Development Board or LWDA grant recipient. 
One commenter suggested that CRC should provide the policy, procedure, 
and forms on processing, investigating, and tracking a complaint. The 
commenter argued that this would unify the procedures and allow all 
States to provide a uniform result.
    Response: CRC understands the commenter's concerns about cost and 
time management issues, but reiterates that such concerns do not 
relieve recipients from complying with Section 188 of WIOA or this 
part. CRC believes that the Nondiscrimination Plan will be an effective 
tool to help States coordinate efforts and avoid duplicative costs and 
drafts this final rule to give States the flexibility to determine how 
State-level and recipient-level EO Officers should coordinate 
monitoring activities. The final rule retains the EO Officer's 
responsibilities to develop and publish the recipient's procedures for 
processing complaints, which recipients are currently required to do 
under the 2015 rule in Sec. Sec.  38.76 and 38.77, and were required to 
do under the 1999 rule in Sec. Sec.  37.76 and 37.77.
    As to whether CRC should provide the policy, procedure and forms 
that the commenter requests, CRC notes that the EO Officer is the 
recipient's employee likely to be the best suited to help recipients 
develop and publish procedures for processing discrimination complaints 
and the investigatory practices that occur thereafter. CRC believes it 
has provided sufficient criteria for recipients and their EO Officers 
related to the processing and tracking of complaints. The requirements 
in subpart D include a subheading titled ``Complaint Processing 
Procedures,'' beginning at Sec.  38.69, which includes sections that 
identify, among other things, the required contents of a complaint, 
required elements of a recipient's complaint processing procedures, and 
the recipient's obligations as to complaints generally. CRC believes 
its detailed provisions in this rule provide sufficient direction to 
help recipients develop and publish procedures for processing 
discrimination complaints. Recipients also are encouraged to contact 
CRC for technical assistance.
    Comment: A local workforce agency stated that implementation of the 
proposed rule would take more than six months and possibly more than a 
year. The commenter recommended that CRC mandate that State-level EO 
Officers hold training sessions for local EO Officers on a quarterly 
basis. The commenter argued that training would help with 
interpretation of the rule and help the State unify its objectives to 
ensure that the State-level EO Officer is providing the best oversight 
and implementation of Section 188 of WIOA.
    Response: CRC appreciates the commenters' concerns regarding 
implementation and training. However, the 30-day effective date for the 
final rule provides recipients with sufficient time to come into 
compliance. CRC notes that most of the requirements in the final rule 
are obligations that currently exist. For those provisions where CRC 
believes that more time is needed for implementation, CRC has 
explicitly provided that additional time in the regulatory text.\283\
---------------------------------------------------------------------------

    \283\ For example, recipients have two years after the effective 
date of this rule to update their data collection of LEP 
individuals' primary and preferred languages under Sec.  
38.41(b)(2). Section 38.55 also provides an additional 180 days for 
States to develop and implement their initial Nondiscrimination 
Plans. Furthermore, Sec.  38.36(d) gives recipients up to 90 days to 
comply with the new equal opportunity notice requirements in 
Sec. Sec.  38.34 and 38.35.
---------------------------------------------------------------------------

    With respect to the suggestion that State-level EO Officers be 
required to train recipient-level EO Officers on a quarterly basis, CRC 
understands the commenters' concern, but declines to impose that 
requirement in this rule. CRC wishes to retain States' flexibility in 
deciding how often training should be conducted, so long as they are 
complying with their overall obligations in this part. The requirements 
in Sec. Sec.  38.29(f) and 38.31(f) emphasize that the EO Officer and 
staff receive training necessary to maintain competency. In that 
regard, the revisions set forth in Sec. Sec.  38.28 through 38.30 
modifying the reporting structure of the State-level EO Officers and 
the management level of the recipient-level EO Officer now puts 
Governors and recipients in the best position to determine the 
frequency of training needed for State-level EO Officers and other EO 
Officers to maintain competency to enable them to ensure compliance 
with this rule.
Small Recipient Equal Opportunity Officer Obligations Sec.  38.32
    Proposed Sec.  38.32 replaced the word ``developing'' with 
``adopting'' because small recipients may not be required to develop 
complaint procedures and process complaints. Governors have the 
discretion to prescribe the complaint processing procedures applicable 
to small recipients pursuant to Sec.  38.73. CRC received no comments 
on this provision and adopts Sec.  38.32 as proposed.
Service Provider Equal Opportunity Officer Obligations Sec.  38.33
    The NPRM modified the title of Sec.  38.28 to ``Service provider 
Equal Opportunity Officer obligations'' and renumbered it as Sec.  
38.33. CRC received no comments on this provision and adopts Sec.  
38.33 as proposed.
Notice and Communication
Recipients' Obligations To Disseminate Equal Opportunity Notice Sec.  
38.34
    Proposed Sec.  38.34 retained language from the 1999 and 2015 
rules,\284\ while incorporating minor revisions to paragraphs (a)(6) 
and (b). Proposed Sec.  38.34(a)(6) added a requirement that the equal 
opportunity notice be provided to ``those with limited English 
proficiency.'' Similarly, Sec.  38.34(b) proposed that the notice be 
provided ``in appropriate languages to ensure meaningful access for LEP 
individuals as described in Sec.  38.9.'' Proposed Sec.  38.9

[[Page 87180]]

included recipients' obligation to provide written translations of 
vital documents for LEP populations. We received no comments 
exclusively pertaining to this provision,\285\ and adopt Sec.  38.34 as 
proposed.
---------------------------------------------------------------------------

    \284\ 29 CFR 37.29 (1999 rule); 29 CFR 38.29 (2015 rule).
    \285\ We received one comment from an advocacy organization that 
generally cross-referenced this provision along with proposed 
Sec. Sec.  38.4(i), 38.4(ttt), 38.36 and 38.39. Our response to that 
comment is addressed in the section-by-section analysis of Sec.  
38.36.
---------------------------------------------------------------------------

Equal Opportunity Notice/Poster Sec.  38.35
    Section 38.35 proposed the specific wording recipients must use in 
their equal opportunity notices and posters. CRC retained most of the 
language from the 1999 and 2015 rules.\286\ Proposed Sec.  38.35 added 
the term ``poster'' to the title, noting an explicit requirement that 
the notice be posted in conspicuous physical locations and on Web site 
pages. Proposed Sec.  38.35 also added parentheticals to the required 
wording, explaining that ``sex'' as a prohibited basis for 
discrimination includes ``pregnancy, child birth, and related medical 
conditions, sex stereotyping, transgender status, and gender identity'' 
and ``national origin'' includes ``limited English proficiency.'' 
Section 38.35 proposed these changes to be consistent with current law 
and to remind beneficiaries and recipients that discrimination based on 
these subcategories is prohibited. The NPRM also proposed language in 
the notice/poster stating that CRC will accept complaints via U.S. mail 
and email at an address provided on CRC's Web site.\287\
---------------------------------------------------------------------------

    \286\ 29 CFR 37.30 (1999 rule); 29 CFR 38.30 (2015 rule).
    \287\ U.S. Dep't of Labor, Civil Rights Center, https://www.dol.gov/oasam/programs/crc/.
---------------------------------------------------------------------------

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

[[Page 87181]]

employee's electronic as well as paper file, if both are maintained.
    Proposed paragraph (b) of Sec.  38.36 required that the notice be 
provided in appropriate formats for registrants, applicants, eligible 
applicants/registrants, applicants for employment and employees and 
participants with visual impairments, correcting an oversight in the 
1999 and 2015 rules that such notice be given only to participants. 
Paragraph (b) retained the language from the 1999 and 2015 rules that, 
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. CRC emphasizes that it is a 
record that notice was given that should be added to the main file, not 
a record that the individual has a visual impairment. That type of 
medical or disability information must be maintained in a separate file 
in accordance with Sec.  38.41(b)(3).
    Proposed paragraph (c) of Sec.  38.36 stated that the notice must 
be provided to participants in appropriate languages other than English 
as required in Sec.  38.9, which sets out recipients' obligations as to 
LEP individuals. This provision was added because recipients had an 
existing obligation under the 1999 and 2015 rules to provide limited 
English proficient individuals with meaningful access to this 
notice.\288\
---------------------------------------------------------------------------

    \288\ See 29 CFR 37.35(a)(2) (1999 rule); 29 CFR 38.35(a)(2) 
(2015 rule).
---------------------------------------------------------------------------

    Proposed paragraph (d) of Sec.  38.36 provided that the notice 
required by proposed Sec. Sec.  38.34 and 38.35 must be initially 
published and provided within 90 days of the effective date of this 
part, or of the date this part first applies to the recipient, 
whichever comes later.
    Several advocacy organizations expressed support for the 
requirements in proposed Sec.  38.36. We received five comments on the 
provisions in this section.
    Comment: A coalition of organizations representing the interests of 
individuals with disabilities commented that ASL versions of notices 
should be available to ensure equal access for deaf, hard of hearing, 
and deafblind beneficiaries, employees, and job applicants, as well as 
those with additional disabilities. The commenters asserted that 
recipients cannot assume that English notification is sufficient for 
individuals who are fluent in ASL.
    Response: CRC agrees that ASL versions of the equal opportunity 
notice should be made available upon request in appropriate cases, and 
the final rule reflects that requirement in Sec.  38.15. However, 
unsolicited offers of information in ASL or alternative formats may be 
contrary to the ADA, whenever they reflect another's perception or 
stereotype about particular disabilities. Instead, individuals are 
always free to request the notice in ASL, and the obligation to provide 
it is only triggered upon such a request.
    As stated in Sec.  38.15, which parallels the language of DOJ's ADA 
Title II regulations, a recipient must take appropriate steps to ensure 
that communications with individuals with disabilities are as effective 
as communications with others. A recipient must furnish appropriate 
auxiliary aids and services where necessary to accomplish this. The 
type of auxiliary aid or service necessary to ensure effective 
communication varies in accordance with the method of communication 
used by the individual, the nature, length, and complexity of the 
communication involved; and the context in which the communication is 
taking place. In determining what type of auxiliary aid and service is 
necessary, a recipient must give primary consideration to the request 
of an individual with a disability. Thus, the provision of auxiliary 
aids and services is always individually based and depends on a number 
of factors. There is no proactive requirement separate from an 
individual request to provide notification in ASL. For these reasons 
CRC declines to make the suggested changes to Sec.  38.36.
    Comment: One State agency commented that it should be the 
responsibility of the human resources department of the recipient, as 
opposed to the EO Officer, to ensure that the equal opportunity notice 
is included in each participant's and employee's electronic and paper 
file, if one of each is kept.
    Response: CRC agrees with the commenter that it is the recipient's 
responsibility to ensure that the notice is included in each employee's 
and participant's file. Section 38.36 explicitly addresses the 
commenter's concern and is appropriately titled ``Recipients' 
obligations to publish equal opportunity notice.'' Thus, the recipient 
has the flexibility to determine which members of its staff will ensure 
compliance with this obligation and can choose to assign that role to 
its Human Resources staff.
    Comment: A State agency recommended that the provisions of Sec.  
38.36 be applicable to partner agencies only if the partner is 
colocated within a one-stop center, reasoning that this is an unfunded 
mandate for partner agencies.
    Response: CRC disagrees with the State agency's description of this 
obligation, and declines to adopt the commenter's suggestion. As 
discussed above, the requirement to publish the equal opportunity 
notice is not new and existed in the 1999 and 2015 rules. Moreover, CRC 
will make translations of this notice available to recipients in the 
ten most frequently used languages in the U.S. other than English. 
While there will be some cost associated with printing and 
disseminating the notice, as discussed below, the final rule does not 
impose an unfunded mandate on State or other governments as defined by 
the Unfunded Mandates Reform Act.\289\
---------------------------------------------------------------------------

    \289\ See infra discussion of the Unfunded Mandates Reform Act.
---------------------------------------------------------------------------

    Regarding the issue of colocation, as discussed in Sec.  38.2 
above, this final rule covers recipients regardless of whether they are 
colocated within a one-stop center. All covered entities, including 
one-stop partner agencies, must meet the equal opportunity obligations 
of WIOA and this part. Those obligations include publication and 
dissemination of the equal opportunity notice under Sec.  38.36. While 
the statute now makes partnerships with certain entities mandatory, 
both the 1999 and 2015 rules required compliance by all one-stop 
partners. Thus, CRC's jurisdiction has not changed, nor has the 
category of entities that are required to comply with the notice 
requirement.
Notice Requirement for Service Providers Sec.  38.37
    Proposed Sec.  38.37 retained the same substantive requirements as 
the 1999 and 2015 rules,\290\ with updates to the title, internal 
citations, and the name of the Methods of Administration (now the 
Nondiscrimination Plan). We received one comment on this section.
---------------------------------------------------------------------------

    \290\ 29 CFR 37.33 (1999 rule); 29 CFR 38.33 (2015 rule).
---------------------------------------------------------------------------

    Comment: A local workforce development board asked whether service 
providers will be required to ``sign-off'' to indicate that they have 
received, read, and understood the requirements of the equal 
opportunity notice. If so, the commenter suggested that that 
requirement be defined in the State Nondiscrimination Plan.
    Response: Proposed Sec.  38.37 did not require signatures from 
service providers to indicate that they received the equal opportunity 
notice from the Governor or LWDA grant recipient, or understood that 
notice. Instead, proposed Sec.  38.37 required the Governor

[[Page 87182]]

or LWDA grant recipient to disseminate the notice on behalf of service 
providers pursuant to Sec.  38.34, with the requisite language provided 
in Sec.  38.35. The Nondiscrimination Plan must include a description 
of how the Governor will ensure that the equal opportunity notice 
requirement will be met for service providers. The service providers 
themselves will be bound by, and should have signed, the written 
assurance required by Sec.  38.25 in which the providers agree to 
comply with the Section 188 equal opportunity regulations. Accordingly, 
apart from the provisions of Sec.  38.25, we decline to impose the 
requirement that service providers ``sign off'' that they have received 
the equal opportunity notice in the final rule, and adopt Sec.  38.37 
as proposed.
Publications, Broadcasts, and Other Communications Sec.  38.38
    Proposed Sec.  38.38 contained most of the same requirements as the 
corresponding sections in the 1999 and 2015 rules.\291\ Proposed Sec.  
38.38(a) provided that, where materials indicate that the recipient may 
be reached by ``voice'' telephone, the materials must also 
``prominently'' provide the telephone number of the text telephone 
(TTY) ``or equally effective telecommunications system'' such as a 
relay service used by the recipient. These modifications reflected 
current technology used by individuals with hearing impairments. 
Proposed paragraph (c) of this section made a minor revision, replacing 
the term ``prohibited ground'' with ``prohibited basis'' for 
consistency with this part. We received one comment on Sec.  38.38.
---------------------------------------------------------------------------

    \291\ 29 CFR 37.34 (1999 rule); 29 CFR 38.34 (2015 rule).
---------------------------------------------------------------------------

    Comment: A coalition of organizations representing the interests of 
individuals with disabilities recommended that the proposed language in 
Sec.  38.38 that aims to reflect current technology used by individuals 
with hearing impairments be replaced with ``videophones, captioned 
telephones, or equally effective telecommunications systems.'' With 
regard to videophones, the commenters recommended that covered entities 
accept video relay calls and be prohibited from requiring callers to 
use a particular form of telephone, such as the text telephone (TTY), 
to place a call. Furthermore, the commenters stated that videophones 
and captioned telephones, including their respective relay systems--
video relay service (VRS) and internet-protocol captioned telephone 
service (IP-CTS), as well as all other relay services--should be 
readily available to all deaf, hard of hearing, and deafblind 
employees, as well as those with additional disabilities, so that 
covered entities can permit them to make calls on the same basis that 
hearing colleagues are able to make phone calls. The commenters 
asserted that any concerns about videophones and IP-CTS posing a risk 
of disrupting or interfering with a covered entity's internet service 
can be resolved by using a network that is either a separate internet 
service or completely walled off from the intranet of the entity solely 
for videophone use. The commenters also noted that use of videophones 
and captioned phones has been denied in some cases as a result of 
concerns regarding access to confidential information, despite the fact 
that Telecommunication Relay Service rules clearly state that all calls 
are kept confidential. The commenters concluded that any restriction in 
response to privacy concerns should be eliminated.
    Response: While CRC believes that the proposed language of 
``equally effective telecommunications system'' would include 
``videophones, captioned telephones, or equally effective 
telecommunications systems,'' including additional examples of current 
technology regarding telephones will be useful for recipients. CRC 
accepts the recommendation to revise the last sentence in Sec.  
38.38(a) to include the examples of videophone and captioned telephone.
    The issue of requiring recipients to have specific 
telecommunications devices and technology available to be used to place 
or receive a call is governed by Sec.  38.15, which requires that a 
recipient take appropriate steps to ensure that communications with 
individuals with disabilities are as effective as communications with 
others. A recipient must furnish appropriate auxiliary aids and 
services where necessary to accomplish this. The type of auxiliary aid 
or service necessary to ensure effective communication varies in 
accordance with the method of communication used by the individual; the 
nature, length, and complexity of the communication involved; and the 
context in which the communication is taking place. In determining what 
type of auxiliary aid and service is necessary, a recipient must give 
primary consideration to the request of the individual with a 
disability. Accordingly, CRC declines to set blanket mandatory 
requirements, such as requiring recipients to accept video relay calls 
in all instances; providing the specific communications device 
requested in all cases (as opposed to an effective alternative 
communications device); or imposing specific internet network 
requirements. Under some circumstances, the failure to provide specific 
devices or systems may constitute discrimination, and CRC will evaluate 
the facts presented on a case-by-case basis by applying the standards 
in Sec.  38.15.
    For these reasons, CRC adopts Sec.  38.38(a) with the addition of 
two examples to paragraph (a).
Communication of Notice in Orientations Sec.  38.39
    Proposed Sec.  38.39 generally retained the same requirements as 
the 1999 and 2015 rules,\292\ with modifications to account for current 
technology and the existing requirements to provide language services 
to LEP individuals, and equally effective communications for 
individuals with disabilities.\293\ The 1999 and 2015 rules required 
recipients, during each presentation to orient new participants, 
employees or the general public to its WIOA Title I funded programs or 
activities, to include a discussion of rights and responsibilities 
under Section 188 and this part, including the right to file a 
discrimination complaint. The proposed rule clarified that not only in-
person orientations but also those provided remotely over the internet 
or using other technology are subject to these notice requirements. 
Proposed Sec.  38.39 also required that the discussion of rights and 
responsibilities during the orientation be communicated in appropriate 
languages to ensure language access as required in Sec.  38.9 of this 
part and in accessible formats as required in Sec.  38.15 of this part. 
We received two comments on these provisions.
---------------------------------------------------------------------------

    \292\ 29 CFR 37.36 (1999 rule); 29 CFR 38.36 (2015 rule).
    \293\ See, e.g., Sec. Sec.  38.9 and 38.15.
---------------------------------------------------------------------------

    Comment: A coalition of organizations expressed support for 
requiring recipients' equal opportunity notice to be communicated in 
orientation presentations to new participants, employees, and/or the 
general public. The commenters reasoned that this provision will help 
increase recipient compliance by ensuring that individuals engaging in 
the workforce development system are aware of their rights. A coalition 
of organizations representing the interests of individuals with 
disabilities commented that ASL versions of equal opportunity notices 
should be provided during orientation. The commenters

[[Page 87183]]

noted that, regardless of the format of the orientation, whether in 
person or remote, the orientation should be fully and equally 
accessible to individuals with disabilities.
    Response: CRC agrees that proposed Sec.  38.39 will increase 
compliance and promote awareness of individuals' rights under WIOA 
Section 188. CRC also agrees that, when required, the orientation 
discussion of rights and responsibilities should be communicated in a 
format that is accessible to individuals with disabilities. However, 
Sec. Sec.  38.39 and 38.15 are intended to be consistent with the 
requirements of the ADA.\294\ As mentioned in Sec.  38.36, to determine 
the type of auxiliary aid and service that is necessary, recipients 
must give primary consideration to the request of the individual with a 
disability. Thus, the provision of auxiliary aids and services is 
always individually based and depends on a number of factors. There is 
no proactive requirement separate from an individual request to provide 
notification in ASL. Accordingly, CRC declines to adopt the suggested 
changes, and finalizes proposed Sec.  38.39 without modification.
---------------------------------------------------------------------------

    \294\ See also DOJ Final Rule to Implement ADAAA, supra note 18.
---------------------------------------------------------------------------

Affirmative Outreach Sec.  38.40
    Proposed Sec.  38.40 generally contained the same requirements as 
the 1999 and 2015 rules.\295\ However, the proposed rule changed the 
title of this section from requiring ``universal access'' to requiring 
``affirmative outreach'' to more descriptively explain the requirements 
contained in this section.
---------------------------------------------------------------------------

    \295\ 29 CFR 37.42 (1999 rule); 29 CFR 38.42 (2015 rule).
---------------------------------------------------------------------------

    Section 38.40 also proposed limited updates to clarify that the 
affirmative outreach requirement applies not just to the listed 
examples of groups and populations, but to ``the various groups 
protected by these regulations.'' CRC expanded the existing list of 
example groups by adding ``national origin groups, various religions, 
[and] individuals with limited English proficiency.'' We also changed 
the reference to ``both sexes'' to ``persons of different sexes'' to 
broaden the terminology. We received three substantive comments on 
Sec.  38.40.
    Comment: Several advocacy organizations expressed support for the 
provisions requiring affirmative outreach. One advocacy organization 
specifically expressed support for CRC's inclusion of ``individuals in 
different age groups.'' Other advocacy organizations recommended that 
CRC strengthen the affirmative outreach provisions by requiring that 
``reasonable efforts to include members of various groups protected by 
these regulations'' include analysis of local population data to 
identify ethnic/national origin groups and individuals with limited 
English proficiency that should be targeted by such outreach. 
Furthermore, the commenters stated that outreach materials should be 
translated into any language identified in Sec.  38.9 to effectively 
reach limited English proficient speakers of those languages.
    Response: CRC appreciates the commenters' support of the 
affirmative outreach requirement, and finds it unnecessary to adopt the 
commenters' recommendations regarding local population data and 
translation of outreach materials. CRC disagrees with the commenters 
that Sec.  38.40 needs to specifically mention analysis of local 
population data. Section 38.40 requires recipients to conduct 
affirmative outreach that targets various populations in order to 
``ensure that [recipients] are providing equal access to their WIOA 
Title I-financially assisted programs and activities.'' Targeting 
various populations in this manner necessarily includes a preliminary 
determination of which populations to target. Making that determination 
will likely involve consulting various sources of information--
including equal opportunity data, performance data, local population 
data, and other relevant resources from within and without the 
recipient's organization. Using these types of resources to determine 
which populations to target for affirmative outreach is something 
recipients should have been doing under the 1999 and 2015 rules 
(Sec. Sec.  37.42 and 38.42, respectively), and should continue to do 
pursuant to Sec.  38.40 of this final rule. Otherwise, recipients would 
not be ``tak[ing] appropriate steps to ensure that they are providing 
equal access to their WIOA Title I-financially assisted programs and 
activities.''
    Regarding translation of outreach materials, CRC believes that 
Sec.  38.40 implicitly requires such translation whenever the required 
outreach is to targeted LEP populations. Otherwise, the outreach would 
not include ``tak[ing] appropriate steps'' and would not ``involve 
reasonable efforts to include members'' of the targeted group.\296\ 
Also, when outreach material contains vital information, Sec.  
38.9(g)(1) in the final rule appropriately captures recipients' 
obligation to translate that vital information. As defined in Sec.  
38.4(ttt), vital information includes information that is necessary for 
an individual to understand how to obtain any aid, benefit, service, or 
training. Whether outreach materials contain vital information will be 
a fact-specific inquiry dependent upon the circumstances of each case. 
Accordingly, CRC views as a best practice that recipients translate all 
outreach materials into languages identified in Sec.  38.9(g)(1), but 
declines to impose that requirement in this rule for materials that 
neither include vital information nor target an LEP population.
---------------------------------------------------------------------------

    \296\ Sec.  38.40. This is consistent with Sec.  38.9(b)(1)'s 
reference to ``outreach to LEP communities to improve service 
delivery in needed languages.'' See also Appendix to Sec.  38.9, 
Recipient LEP Plan: Promising Practices, ] 8 (listing outreach as an 
example of an implementing step in a recipient's LEP plan).
---------------------------------------------------------------------------

    Comment: A coalition of organizations recommended making the list 
of ``reasonable efforts'' a list of minimum, specific targeted outreach 
required of recipients to address underrepresentation or inequitable 
representation of protected individuals within WIOA programs and 
activities. These commenters also recommended that the Department 
require all recipients to provide all applicants and program 
participants information, including wages and benefits, about the full 
range of employment opportunities offered by the program, reasoning 
that research shows that women might have pursued training for 
different, higher paying occupations had they received more detailed 
information about the wages and benefits of different occupations 
before they began their training.
    Response: While CRC acknowledges the obligation for recipients to 
conduct affirmative outreach as provided in proposed Sec.  38.40, CRC 
also believes that the outreach required to comply with WIOA and this 
part will depend upon the circumstances of individual recipients, who 
should therefore have the flexibility to adopt case-specific reasonable 
efforts under this requirement. Accordingly, CRC declines to impose a 
list of required minimum reasonable efforts.
    Similarly, CRC declines to require recipients to provide wage and 
benefit information to all applicants and program participants, but 
considers it a best practice for recipients to implement. Indeed, CRC 
strongly encourages recipients to provide as much information as 
possible regarding wages and benefits for occupations to help 
applicants and participants make informed decisions about the

[[Page 87184]]

occupations before receiving training. If recipients choose to provide 
information regarding possible wages and benefits, that information 
should be provided on an equal basis to all applicants and program 
participants. CRC also notes that, if recipients steer women or members 
of other protected groups into lower paying occupations, they may be 
liable for discrimination under WIOA Section 188 and Sec.  38.5 of this 
part.
Data and Information Collection and Maintenance
Collection and Maintenance of Equal Opportunity Data and Other 
Information Sec.  38.41
    Proposed Sec.  38.41 generally retained the same requirements as 
the 1999 and 2015 rules.\297\ CRC did, however, propose changes in 
Sec.  38.41(b)(2) and added new paragraph (b)(3).
---------------------------------------------------------------------------

    \297\ 29 CFR 37.37 (1999 rule); 29 CFR 38.37 (2015 rule).
---------------------------------------------------------------------------

    Proposed paragraph (b)(2) added ``limited English proficiency and 
preferred language'' to the list of categories of information that each 
recipient must record about each applicant, registrant, eligible 
applicant/registrant, participant, and terminee. As noted in the NPRM, 
this data collection obligation would not apply to applicants for 
employment and employees because the obligation as to LEP individuals 
in Sec.  38.9 does not apply to those categories of individuals. 
Recipients' collection of information relates directly to serving (not 
employing) LEP individuals. In addition, CRC proposed to delay 
enforcement regarding collection of these two new data points for two 
years from the effective date of the final rule to allow recipients 
adequate time to update their data collection and maintenance systems.
    Proposed paragraph (b)(3) introduced new obligations regarding a 
recipient's responsibilities to keep the medical or disability-related 
information it collects about a particular individual on a separate 
form, and in separate files. This new paragraph listed the range of 
persons who may have access to such files or be informed of a 
particular individual's disability, medical condition, work 
restrictions, or reasonable accommodation under certain circumstances. 
We received 16 substantive comments regarding Sec.  38.41.
    Comment: Several commenters supported the new equal opportunity 
data elements that must be collected by recipients. A local workforce 
agency stated that the additional data would help recipients learn more 
about the individuals using their services. The commenter said 
capturing and recording these data points would be easy to incorporate 
into their operation. Similarly, several advocacy organizations 
supported the collection of the additional data elements and 
recommended that CRC require these data to be made publicly available 
annually to monitor the effectiveness of outreach and nondiscrimination 
regulations. A coalition of organizations stated that the collection of 
additional data is essential to ensure compliance and would move WIOA 
programs away from reinforcing gender inequities.
    In contrast, several commenters expressed opposition to the 
collection of additional data elements by recipients. Many State 
agencies and professional associations argued that the new data 
collection requirements were outside of the scope of Section 188 of 
WIOA. Specifically, State agencies urged that CRC eliminate the 
requirement relating to LEP individuals and their preferred languages. 
In support of their position, a State agency commented that ``limited 
English proficiency'' was difficult to quantify and thus the data would 
be questionable. Another State agency commented that the collection of 
``preferred language of an individual'' would create unnecessary costs. 
A third State agency questioned the value of collecting more 
information because individuals are not required to disclose their 
race/ethnicity, sex, and disability status. The commenter therefore 
argued that any report generated using this information would be 
useless because the information could be inaccurate and imprecise.
    Response: After careful consideration, CRC retains the requirement 
that recipients must record the limited English proficiency and 
preferred language of an individual. As some commenters noted, 
capturing these data will help recipients learn more about the 
preferred languages of the individuals using their services. Although 
there is no way for recipients to guarantee 100 percent accuracy as to 
the information received from applicants, registrants, participants, 
and terminees, CRC recognizes that giving individuals the opportunity 
to self-identify their preferred language is the most efficient and 
effective way to capture this information as to LEP individuals. This 
information is also used by States with language access laws.\298\ CRC, 
however, declines to require recipients to make the collected 
information publicly available as part of this rule because CRC 
understands that this information is already publicly available for 
most core programs.\299\ Therefore, CRC does not consider it necessary 
to impose that requirement on recipients in this provision.
---------------------------------------------------------------------------

    \298\ See supra note 228 and accompanying text.
    \299\ See U.S. Dep't of Labor, Emp't & Training Admin., WIA 
Performance Results, https://www.doleta.gov/performance/results/eta_default.cfm#wiasrd_databook.
---------------------------------------------------------------------------

    Finally, as explained above, it is well-settled that discrimination 
on the basis of national origin may include discrimination against LEP 
individuals. Collection of LEP and preferred language data is therefore 
within the scope of these implementing regulations, and a necessary 
step towards meeting the nondiscrimination and equal opportunity 
obligations of WIOA Section 188 and this part. CRC recognizes that the 
addition of these two data points will impose additional obligations on 
recipients' data collection systems. Thus, as proposed in the NPRM, CRC 
will allow recipients two years to come into compliance with the 
requirement to update their data collection practices as to limited 
English proficiency and preferred language, and amends the third 
sentence in Sec.  38.41(b)(2) to reflect that compliance date.
    Comment: CRC received several comments regarding the collection of 
disability information in proposed Sec.  38.41(b)(3). In order to make 
WIOA Title I programs more responsive to individuals with disabilities, 
an advocacy organization suggested that CRC modify the rule to indicate 
that a person with a disability may voluntarily disclose their 
disability status during the course of service, and this information 
should be used by workforce system staff for a limited number of 
reasons with the focus on enhancing the services provided to the 
individual.
    The advocacy organization also stated that the proposed rule did 
not take into account that there are numerous reasons staff may need to 
have knowledge of an individual's disability status beyond eligibility 
for Title I of WIOA. The commenter further opined that the proposed 
rule may be too restrictive and could result in Title I programs 
failing to be fully responsive to the needs of individuals with 
disabilities as service recipients. To support its position, the 
commenter provided examples of instances where knowledge of an 
individual's disability would improve the services offered to that 
individual. The commenter also stressed that the proposed rule must 
emphasize that this voluntarily disclosed disability information is 
confidential. Similarly,

[[Page 87185]]

an advocacy organization supported the recipient's responsibility to 
keep medical and disability related information on separate forms and 
in separate files.
    Response: CRC agrees that recipients must treat information 
obtained regarding an individual's disability or medical condition as 
confidential, and that in appropriate circumstances such information 
may be relevant beyond eligibility for WIOA services. CRC declines, 
however, to adopt the modifications suggested by the commenter because 
they are unnecessary. The final rule does contemplate situations beyond 
eligibility determinations in which an individual's disability is 
relevant. For example, other sections of the rule describe recipients' 
obligations regarding physical accessibility and communications with 
individuals with disabilities.\300\ In those situations, information 
received regarding an individual's disability must be treated in a 
confidential manner, in accordance with Sec.  38.41(b)(3).
---------------------------------------------------------------------------

    \300\ See Sec. Sec.  38.13(a) and 38.15.
---------------------------------------------------------------------------

    The requirements of Sec.  38.41(b)(3) are only intended to address 
the manner in which disability status information must be maintained by 
the recipient, in order to ensure that it is treated in a confidential 
manner. This provision parallels the requirements of the ADA on this 
issue. New paragraph (b)(3) is also consistent with the Department's 
regulations implementing Section 504 of the Rehabilitation Act, and 
with the EEOC's regulations implementing Title I of the ADA.\301\ CRC 
believes that consistency across enforcement agencies will better 
enable recipients to develop protocols that are consistent with these 
requirements.
---------------------------------------------------------------------------

    \301\ See 29 CFR 1630.14(b)(1)(i)-(iii).
---------------------------------------------------------------------------

    Regarding the advocacy organization's comment, an individual with a 
disability is always free to disclose disability status if desired; 
however, such disclosure is limited to those to whom the individual 
with a disability chooses to make the disclosure, unless other 
officials are permitted to know pursuant to Sec.  38.41(b)(3). 
Permitting medical or disability information to be shared without the 
individual's specific consent is contrary to the requirements of the 
ADA. Thus, CRC stresses the importance of keeping narrow the range of 
persons who may be permitted to access files containing medical and 
disability-related information to ensure that sensitive disability 
information remains confidential. The rule's obligations do not limit 
when individuals with disabilities may voluntarily self-identify, but 
govern how the recipient should treat such information once it is 
received.
    Comment: Several commenters made recommendations to improve the 
quality of data collected by grant recipients. An advocacy organization 
commented that recipients were collecting data on ``too limited a pool 
of customers.'' The commenter recommended that recipients collect and 
record the age (and other protected bases) of all those who seek 
services. The commenter argued that without a report on all individuals 
who seek information or services, there is no base against which 
participants, registrants, applicants, and others can be monitored or 
analyzed. A coalition of organizations suggested that CRC require 
recipients to collect data on WIOA service and program usage by race, 
sex, and ethnicity. The commenters also recommended that these data be 
cross-tabulated so that recipients and CRC can better evaluate the 
utilization of WIOA services and programs by each particular group 
(e.g., African American women or Latinas).
    Response: CRC appreciates the commenters' suggestions to expand the 
data collection requirements and their usage. However, CRC declines to 
do so, and disagrees that under this final rule there is no base 
against which participants, registrants, applicants, and others can be 
monitored or analyzed. Section 38.31 requires each recipient's EO 
Officer ``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, which includes monitoring the 
collection of [equal opportunity] data required [in Sec.  38.41] to 
ensure compliance . . . .'' Monitoring the data in this way--to ensure 
a recipient has not violated its nondiscrimination and equal 
opportunity obligations--will often require comparing that equal 
opportunity data to various sources, including programmatic data (e.g., 
performance data), local population data (e.g., census data), and other 
relevant resources from within and without the recipient's 
organization. Otherwise, recipients' EO Officers would not be 
fulfilling their duty to use the equal opportunity data collected ``to 
ensure compliance.''
    Therefore, it is unnecessary to require data collection in addition 
to that already contemplated by Sec.  38.41. Furthermore, CRC notes 
that the data collection requirement generally captures the commenter's 
concern, in any event, because those who seek information or services 
for WIOA Title I programs are mostly accounted for within the 
prescribed categories in Sec.  38.41: Applicants, registrants, 
participants, terminees, employees, and applicants for employment.\302\
---------------------------------------------------------------------------

    \302\ CRC notes for the commenters' convenience that the 
definition of ``applicant'' in Sec.  38.4(c) includes an individual 
``who has signified . . . interest by submitting personal 
information in response to a request by the recipient.''
---------------------------------------------------------------------------

    Additionally, recipients' obligation to collect and maintain data 
on the race/ethnicity, age, sex, and (where known) disability status of 
all applicants, registrants, participants, and employees existed in the 
1999 rule; currently exists in the 2015 rule; and CRC retains this 
requirement in Sec.  38.41. CRC declines to impose a blanket additional 
requirement that the data be cross-tabulated by subgroups as this might 
in some circumstances impose an additional burden on recipients. 
However, CRC would expect recipients to conduct cross-tabulated 
analyses between individual groups and to take a more thorough look at 
the intersections of race and sex when appropriate as part of the 
monitoring process.
Summary of Regulatory Changes
    For the reasons set forth above and in the NPRM and considering the 
comments received, CRC finalizes Sec.  38.41 as proposed, with one 
modification. Paragraph (b)(2) now allows recipients two years from the 
effective date of this final rule to begin collecting the LEP status 
and preferred language of individuals.
Information To Be Provided to the Civil Rights Center (CRC) by Grant 
Applicants and Recipients Sec.  38.42
    Proposed Sec.  38.42 retained most of the requirements from the 
1999 and 2015 rules.\303\ Proposed paragraph (a) of this section added 
pregnancy, child birth or related medical conditions, transgender 
status, and gender identity in parentheses as forms of sex 
discrimination prohibited under this part and ``limited English 
proficiency'' in parentheticals as a form of national origin 
discrimination prohibited by this part. Proposed paragraph (b) removed 
the reference to grant applicants. Proposed paragraphs (c) and (e) 
inserted the phrase ``that the Director considers'' before the word 
``necessary'' to advise recipients that the Director of CRC ultimately 
determines what information is necessary for CRC to investigate 
complaints and conduct compliance reviews. The Director will also 
decide what information is necessary to determine whether the grant 
applicant

[[Page 87186]]

would be able to comply with the nondiscrimination and equal 
opportunity provisions of WIOA and this part. As indicated in the NPRM, 
proposed paragraph (e) confirmed CRC's ability to engage in pre-award 
reviews of grant applicants, but CRC does not contemplate the delay or 
denial of an award. Processes that may result in the delay or denial of 
an award to a grant applicant were addressed in proposed Sec.  38.62. 
We received three substantive comments on proposed Sec.  38.42.
---------------------------------------------------------------------------

    \303\ 29 CFR 37.38 (1999 rule); 29 CFR 38.38 (2015 rule).
---------------------------------------------------------------------------

    Comment: An organization representing women in the trades 
recommended that the Department require State and local workforce 
systems to provide information on their gender equity gap analysis and 
how funds have been used to improve programs and close gaps. The 
commenter suggested that the Department require States, workforce 
areas, and job training programs that demonstrate a gender equity wage 
gap at placement or underrepresentation of women in training programs 
in male dominated fields to develop written affirmative action/gender 
equity plans.
    Response: We acknowledge the pay disparities that exist between men 
and women, and the need to close the gender wage gap.\304\ CRC believes 
the final rule requires Governor and recipient monitoring 
responsibilities that will identify and remedy gaps that are the result 
of discrimination or denial of equal opportunity. Pursuant to Sec.  
38.31(b) of the final rule, EO Officers are required to monitor and 
investigate the activities of recipients to ensure compliance with 
nondiscrimination and equal opportunity obligations. Additionally, 
Governors are required, under Sec.  38.54, to develop and implement 
Nondiscrimination Plans for proper oversight of recipients' State 
Programs. CRC believes that the requirements set forth in Sec. Sec.  
38.31, 38.42 and 38.54 address the commenters' concerns, while not 
imposing additional obligations on recipients' staff and resources. 
Therefore, CRC declines to require grant applicants and recipients to 
perform the analyses suggested by the commenters, or to create 
affirmative action plans.
---------------------------------------------------------------------------

    \304\ A comparison of average annual wage data from 2013 reveals 
that women make 78 cents for every dollar that men make. U.S. Bureau 
of the Census, Income and Poverty in the United States: 2013 (Sept. 
2014), available at https://www.census.gov/library/publications/2014/demo/p60-249.html. Data on average weekly wages from the Bureau 
of Labor Statistics for the same year shows a similar gap with women 
making 82 cents for every dollar that men make. Bureau of Labor 
Statistics, U.S. Department of Labor, Highlights of Women's Earnings 
(Dec. 2014) (averaging annual data collected from the Current 
Population Survey, Median Weekly Earnings of Full-Time Wage and 
Salary Workers), available at http://www.bls.gov/opub/reports/cps/highlights-of-womens-earnings-in-2013.pdf.
---------------------------------------------------------------------------

    Comment: A State agency argued that the requirement in Sec.  
38.42(a) to notify the Director whenever a discrimination lawsuit or 
administrative enforcement action has been filed is overly burdensome 
and unrelated to equal opportunity compliance. The commenter stressed 
that initiating a discrimination action does not mean that there has 
been a violation. The commenter also mentioned that under Section 188 
of WIOA, CRC only has jurisdiction over violations; therefore notice 
serves no legitimate purpose and is arbitrary. Furthermore, the 
commenter stated that the requirement was overly broad because a State 
can be a recipient outside the context of a State Workforce Agency. The 
commenter recommended that the requirement in Sec.  38.42(a) be removed 
or modified.
    Response: CRC declines to remove or modify the language set forth 
in proposed Sec.  38.42(a). That section proposed no new obligations on 
recipients, but only clarified the scope of sex and national origin 
discrimination under existing law by adding parenthetical explanations. 
In both the 1999 and 2015 rules, CRC required that grant applicants and 
recipients notify the Director of CRC when administrative enforcement 
actions or lawsuits were filed against it. Thus, there is no new burden 
associated with this provision, and the existing burden to give notice 
of enforcement actions and lawsuits is minimal. While CRC acknowledges 
that the initiation of a discrimination action does not mean there has 
been a violation, CRC's goal is to help recipients come into compliance 
if a violation does exist. CRC believes it is in the best position to 
offer recipients technical assistance to ensure compliance with the 
nondiscrimination and equal opportunity provisions when it has 
pertinent information about an enforcement action or lawsuit as soon as 
possible.
    CRC agrees that a State can be a recipient outside of the context 
of a State Workforce Agency. Indeed, Sec. Sec.  38.2 and 38.4(zz) and 
(kkk) describe the entities to which part 38 applies, and define 
``recipient'' and ``State Programs.'' Entities that receive WIOA Title 
I federal financial assistance remain obligated to comply with the 
nondiscrimination and equal opportunity provisions of this part. That 
obligation has not changed, even with the minor modifications we have 
proposed in Sec.  38.42.
    Comment: A State labor agency stated that the requirements in Sec.  
38.42(c) are vague and broad and should be specifically defined.
    Response: CRC declines to modify the language in proposed Sec.  
38.42(c). This provision appropriately allows the Director flexibility 
in requesting and obtaining necessary documents and information to 
properly investigate complaints and conduct compliance reviews. Each 
discrimination action filed presents its own set of unique facts. 
Because of that variability, the Director cannot specify in this rule 
the precise information needed to appropriately investigate a 
particular complaint or conduct a particular compliance review under 
the nondiscrimination and equal opportunity provisions of this part. 
Moreover, proposed Sec.  38.42(c) contains no new requirements for 
grant applicants or recipients as compared to the 1999 and 2015 rules. 
Accordingly, the proposed language is adopted in the final rule.
Required Maintenance of Records by Recipients Sec.  38.43
    Proposed Sec.  38.43(a) retained most of the language from the 1999 
and 2015 rules,\305\ but added the preservation of ``electronic 
records'' to the existing requirement that grant applicants and 
recipients maintain certain records. The electronic record keeping 
requirement retained the same three-year period that applies to hard 
copy records. Proposed paragraph (b) expanded the requirements from the 
1999 and 2015 rules by requiring the preservation of records once a 
discrimination complaint has been filed or a compliance review is 
initiated. As explained in the NPRM, CRC chose to incorporate 
compliance reviews in this records retention section because the same 
preservation of records is necessary for the duration of a compliance 
review as for a complaint investigation. We received one comment on 
Sec.  38.43.
---------------------------------------------------------------------------

    \305\ 29 CFR 37.39 (1999 rule); 29 CFR 38.39 (2015 rule).
---------------------------------------------------------------------------

    Comment: A local workforce agency supported the requirements in 
proposed Sec.  38.43, commenting that generating and maintaining 
electronic records would provide additional support to the recipient's 
current recordkeeping. The commenter stated that the requirement would 
allow recipients to have their records and files easily available for 
discrimination complaints and compliance reviews.
    Response: CRC agrees and, for the reasons set forth above and in 
the NPRM and considering the comments received, finalizes proposed 
Sec.  38.43 without modification.

[[Page 87187]]

CRC Access to Information and Information Sources Sec.  38.44
    Proposed Sec.  38.44(a) included a minor revision to the 
corresponding section of the 1999 and 2015 rules,\306\ by requiring 
that each grant applicant and recipient must permit access by the 
Director ``or the Director's designee'' to premises, employees, and 
participants for the purpose of conducting investigations, compliance 
reviews, monitoring activities, or other similar activities outlined in 
this section. We received two substantive comments on proposed Sec.  
38.44.
---------------------------------------------------------------------------

    \306\ 29 CFR 37.30 (1999 rule); 29 CFR 38.40 (2015 rule).
---------------------------------------------------------------------------

    Comment: A State agency recommended that Sec.  38.44(a) be revised 
to state that sub-recipients must also provide access to the Director. 
The commenter noted that some recipients may not be able to provide 
access to sub-recipients' premises, employees, etc.
    Response: CRC appreciates the commenter's recommendation, but 
declines to revise paragraph (a) to specifically require that sub-
recipients provide access to the Director. Section 38.4(zz) defines 
``recipient'' to include entities that receive WIOA Title-I financial 
assistance ``directly from the Department or through the Governor or 
another recipient'' (emphasis added). This definition captures the 
commenters' concern regarding sub-recipients. Sub-recipients, like 
(primary) recipients, are expected to provide the Director the same 
access to the entity's premises, employees, and participants.
    Comment: A State agency requested that the term ``normal business 
hours'' be stricken and replaced with ``hours of operation,'' reasoning 
that this change would allow access to a recipient's facilities and the 
employee who filed the complaint, regardless of the assigned shift. 
Furthermore, the commenter stated that this change would promote higher 
levels of compliance by the recipients, knowing that investigations 
could occur at any time, day or night.
    Response: We agree with the commenter's recommendation. Therefore, 
we have replaced ``normal business hours'' with ``its hours of 
operation.'' As a practical matter, however, CRC has interpreted 
``normal business hours'' to mean the hours of operation for that 
specific entity,\307\ so this revision does not represent a change in 
CRC's current practice.
---------------------------------------------------------------------------

    \307\ For example, if a recipient's normal business hours were 
from 10 p.m. to 6 a.m., CRC would expect that recipient to allow the 
Director access to the recipient's premises, employees, and 
participants during that time.
---------------------------------------------------------------------------

Summary of Regulatory Changes
    For the reasons described in the proposed rule and considering the 
comments received, CRC finalizes proposed Sec.  38.44 with one 
modification. We replace the phrase ``normal business hours'' with 
``its hours of operation'' in paragraph (a).
Confidentiality Responsibilities of Grant Applicants, Recipients, and 
the Department Sec.  38.45
    Proposed Sec.  38.45 retained the same requirements as the 1999 and 
2015 rules \308\ but made small organizational changes to this section 
to improve readability. CRC received no comments on this provision and 
adopts Sec.  38.45 as proposed.
---------------------------------------------------------------------------

    \308\ 29 CFR 37.41 (1999 rule); 29 CFR 38.41 (2015 rule).
---------------------------------------------------------------------------

Subpart C--Governor's Responsibilities To Implement the 
Nondiscrimination and Equal Opportunity Requirements of the Workforce 
Innovation and Opportunity Act (WIOA)

Subpart Application to State Programs Sec.  38.50
    Proposed Sec.  38.50 modified the title of this section and 
replaced the term ``State Employment Security Agencies'' with ``State 
Workforce Agencies'' to remain consistent with WIOA and with ETA's 
regulations.\309\ CRC received no comments on this provision and adopts 
Sec.  38.50 as proposed.
---------------------------------------------------------------------------

    \309\ U.S. Dep't of Labor, Emp't & Training Admin., Workforce 
Innovation and Opportunity Act; Final Rule, 81 FR 56071, Aug. 19, 
2016 (hereinafter ``ETA WIOA Final Rule'').
---------------------------------------------------------------------------

Governor's Oversight and Monitoring Responsibilities for State Programs 
Sec.  38.51
    Proposed Sec.  38.51 mostly retained the requirements in this 
section from the 1999 and 2015 rules, but also incorporated certain 
paragraphs from a different section of those rules.\310\ This 
reorganization was intended to underscore the importance of the 
Governor's monitoring responsibilities.
---------------------------------------------------------------------------

    \310\ 29 CFR 37.54(d)(2)(ii)(A)-(C) (1999 rule); 29 CFR 
38.54(d)(2)(ii)(A)-(C) (2015 rule).
---------------------------------------------------------------------------

    Specifically, proposed Sec.  38.51(a) retained the Governor's 
oversight responsibilities,\311\ which included ensuring compliance 
with the nondiscrimination and equal opportunity provisions of WIOA 
Section 188 and this part, and negotiating, where appropriate, with a 
recipient to secure voluntary compliance when noncompliance is found 
under proposed Sec.  38.91(b). Proposed Sec.  38.51(b) incorporated the 
Governor's obligation to monitor recipients for compliance,\312\ and 
changed the frequency of that monitoring requirement from 
``periodically'' to ``annually.''
---------------------------------------------------------------------------

    \311\ 29 CFR 37.51 (1999 rule); 29 CFR 38.51 (2015 rule).
    \312\ 29 CFR 37.54(d)(2)(ii)(A)-(C) (1999 rule); 29 CFR 
38.54(d)(2)(ii)(A)-(C) (2015 rule).
---------------------------------------------------------------------------

    Proposed Sec.  38.51(b)(1) added ``limited English proficiency'' 
and ``preferred language'' to the list of categories of records and 
data that the Governor must analyze. We received 18 comments on 
proposed Sec.  38.51.
    Comment: Several commenters supported the annual monitoring 
requirement under Sec.  38.51(b). An advocacy organization stated that 
annual monitoring would provide greater focus on areas requiring 
improvement and identify any structural barriers in the way of 
programmatic access. In support of this change, an advocacy 
organization commented that periodic reviews were too ambiguous. 
Additionally, two advocacy organizations supported the annual review 
requirements outlined in Sec.  38.51, including statistical or 
quantifiable analysis of recipient data and the investigation of any 
significant differences in participation to determine whether they are 
due to discrimination.
    In contrast, many State agencies disagreed with the proposed rule's 
annual monitoring requirement. Several commenters claimed that annual 
monitoring was not supported by WIOA. Two of these commenters argued 
there was no statistical justification for why annual monitoring was 
the most effective option and concluded that the annual requirement was 
arbitrary. Another State agency recommended periodic monitoring, 
reasoning that annual assessments are unnecessary as that State had 
never found any violations of equal opportunity and nondiscrimination 
requirements. To further support their position, numerous commenters 
pointed to the increase in workload that an annual monitoring 
requirement would create, without additional funding or resources from 
the Department. One State agency asked whether additional resources 
would be provided to conduct annual reviews. Several State agencies 
argued that increasing the frequency of reviews would reduce their 
quality.
    In conclusion, the various State agencies asserted that states were 
in the best position to determine when monitoring is appropriate and 
recommended the Department replace ``annual'' with ``periodic.'' 
Although State agencies recommended replacing ``annual'' with 
``periodic,'' they also indicated that many of these States currently 
monitor their recipients once

[[Page 87188]]

every two years. Some State agencies specifically recommended that the 
monitoring requirement be changed to a biennial schedule to allow more 
latitude and flexibility.
    Response: After careful consideration of all the comments, CRC 
declines to replace ``annual'' with ``periodic'' or ``biennial'' 
monitoring. CRC agrees with commenters who believed that the 1999 and 
2015 rules requiring periodic monitoring were too ambiguous and did not 
lead to effective monitoring for many States. Under the 1999 and 2015 
rules, CRC acknowledges that its expectations for monitoring were 
somewhat unclear. Thus, CRC retains the annual monitoring requirement 
from the proposed rule to underscore the importance of the Governor's 
oversight responsibilities in compliance with this subpart. This 
monitoring requirement is within the scope of CRC's authority to issue 
regulations necessary to implement the equal opportunity and 
nondiscrimination provisions of WIOA Section 188, including enforcement 
procedures.\313\
---------------------------------------------------------------------------

    \313\ See 29 U.S.C. 3248(e).
---------------------------------------------------------------------------

    CRC believes that monitoring conducted less than annually is 
ineffective, particularly when dealing with accessibility issues and 
correcting any discriminatory activity that may occur. For example, the 
populations being served may shift from year to year. Governors need to 
identify and correct, as soon as possible, any discriminatory practices 
or barriers that individuals face when attempting to access a service 
or program. Some violations may take time to remedy; under biennial or 
periodic monitoring, remedies will be slower in implementation. CRC 
believes that annual monitoring provides for better communication 
between the Governor and the State Programs, and that coordinated 
planning will enhance the quality of monitoring. Moreover, this 
monitoring requirement is consistent with ETA's regulation requiring 
oversight of one-stop career centers \314\ and helps maintain 
consistency in state-level practices nationwide. While allocation of 
funding for specific obligations is beyond the scope of this rule, the 
Nondiscrimination Plan will be an effective tool for coordination of 
state-wide monitoring and to minimize associated costs.
---------------------------------------------------------------------------

    \314\ ETA WIOA Final Rule, supra note 309.
---------------------------------------------------------------------------

    Comment: One advocacy organization expressed concern that equal 
opportunity data collection by recipients was separated from 
performance data collection by service providers. The commenter 
recommended that the regulations clearly explain how equal opportunity 
data and performance data will be integrated for analysis purposes. The 
commenter stressed that this type of integrated analysis was crucial 
for the Governor to determine whether significant differences in 
participation are due to discrimination, a failure of performance, or 
some other reason.
    Response: We appreciate the commenter's concerns but believe the 
rule as written provides the ability for Governors/recipients to 
perform the kinds of analyses needed to uncover discriminatory patterns 
or practices. While this rule only requires the collection of 
demographic data, as discussed above regarding Sec.  38.41, Governors 
and/or recipients are expected to utilize whatever data are available 
to them, including performance data, to ensure nondiscrimination and 
equal opportunity in their WIOA Title I programs and activities. We 
expect that the availability of data may vary on a case-by-case basis. 
Therefore, we decline to modify the regulations to explain how equal 
opportunity and performance data should be integrated for analysis.
    Comment: A State agency asked whether a ``desk review'' that 
includes data and statistical analysis be acceptable for annual 
monitoring.
    Response: The rule does not use the specific term ``desk review.'' 
Recipients are expected to complete their monitoring obligations under 
Sec.  38.51(b) in a manner that is consistent with the provisions of 
the Nondiscrimination Plan described at Sec.  38.54 (which outlines the 
Governor's obligations for developing and implementing that Plan).
    We recognize that annual monitoring can be accomplished through 
offsite review so long as all necessary data and information are 
collected and examined in relation to the Plan, including data on 
physical facilities. These data and information may be collected by the 
State-level EO officer directly or the State-level EO officer may 
obtain these data and information from other entities collecting it, 
such as monitoring officials for WIOA operations representing the State 
or local board, or the U.S. Department of Labor. To conduct the 
appropriate annual analysis, State-level EO Officers may wish to use 
quarterly participation data submitted to the Department, any findings 
or complaints on file for the program, any corrective actions taken in 
response to findings or complaints, and physical assessments of 
facilities, including those made by on-site personnel. With respect to 
physical assessments, for example, to determine physical and 
programmatic accessibility for individuals with disabilities and 
whether the equal opportunity notice has been properly posted, 
recipients retain the flexibility to decide who will conduct that 
assessment and how that information (measurements, pictures, data, 
other monitoring reviews, etc.) will be conveyed to the appropriate EO 
Officer by on-site personnel, or otherwise collected by the EO Officer.
    Comment: Several commenters addressed the new data elements that 
must be collected by recipients--recording the limited English 
proficiency and preferred language of individuals. Several commenters 
did not support the collection of additional data elements by 
recipients. Commenters argued that the new data collection requirements 
were outside of the scope of WIOA because they are not mentioned in 
Section 188.
    Some advocacy organizations, however, supported the collection of 
additional data. A local workforce agency stated that the addition of a 
language collection category will enable recipients to record the 
number of individuals that are enrolled in their WIOA program, record 
the number of language services needed for individuals seeking WIOA 
services, and produce comprehensive reports detailing the diversity of 
the recipient's workforce area. To help ascertain and analyze the 
quantity of language services needed to assist individuals, one 
commenter recommended that recipients establish a process for 
collecting periodic reports from their service providers to ensure data 
are recorded correctly and matches data in the recipient's system.
    Response: We appreciate hearing about the commenter's experience 
with promising practices for data collection. We disagree with other 
commenters' characterization of the LEP collection requirements as 
outside of the scope of the statute. CRC has the authority to issue and 
enforce regulations that prohibit discrimination on the basis of 
national origin and, as discussed above regarding Sec.  38.9, that 
prohibition includes discrimination against LEP individuals. It is well 
established that policies and practices that deny LEP individuals 
meaningful access to federally funded programs and activities may 
constitute unlawful national origin discrimination.\315\ As supporters 
of the

[[Page 87189]]

proposal stated, obtaining this information is critical in ensuring 
that LEP individuals are being serviced appropriately throughout each 
State. This requirement helps to ensure that States are properly 
carrying out their obligations in this subpart.
---------------------------------------------------------------------------

    \315\ Lau v. Nichols, 414 U.S. 563, 566 (1974); Colwell v. Dep't 
of Health & Human Servs., 558 F.3d 1112, 1116-17 (9th Cir. 2009); 
Cabrera v. Alvarez, 977 F. Supp. 2d 969, 977-78 (N.D. Cal. 2013); 
Almendares v. Palmer, 284 F. Supp. 2d 799, 807-08 (N.D. Ohio 2003).
---------------------------------------------------------------------------

Governor's Liability for Actions of Recipients the Governor Has 
Financially Assisted Under Title I of WIOA Sec.  38.52
    Section 38.52(a)(1) proposed minor changes by replacing the phrase 
``adhered to a Methods of Administration'' with ``implemented a 
Nondiscrimination Plan.'' We received one comment on proposed Sec.  
38.52.
    Comment: A State agency commented that CRC should confirm 
acceptance of the Nondiscrimination Plan from the Governor and identify 
any discrepancies found by the Department, such as a noncompliant 
policy, process, or procedure adapted by the State.
    Response: CRC declines to modify the proposed language in the final 
rule to require that CRC ``accept'' the Nondiscrimination Plan and/or 
identify any discrepancies in the plan. The Governor's monitoring and 
oversight responsibilities exist regardless of affirmative approval 
from CRC. States should not await validation to implement their 
Nondiscrimination Plan, although CRC is available to provide technical 
assistance as needed. Furthermore, in subpart D of this rule, CRC has 
adequately outlined the compliance procedures and the steps it will 
take if it determines that any State or recipient has not complied with 
any obligations under this rule.
    For the reasons set forth above and in the NPRM and considering the 
comments received, CRC finalizes proposed Sec.  38.52 without 
modification.
Governor's Oversight Responsibility Regarding Recipients' Recordkeeping 
Sec.  38.53
    Proposed Sec.  38.53 changed only the title of this section. CRC 
received no comments on this provision and adopts Sec.  38.53 as 
proposed.
Governor's Obligations To Develop and Implement a Nondiscrimination 
Plan Sec.  38.54
    Proposed Sec.  38.54 revised the title of this section and 
generally retained the language of the 1999 and 2015 rules, with the 
exception of the provisions that CRC moved to proposed Sec.  38.51, 
discussed above. Proposed Sec.  38.54(a)(1) replaced the phrase 
``adhere to a Methods of Administration'' with ``implement a 
Nondiscrimination Plan'' in the first sentence, and replaced ``should'' 
with ``must'' in the second sentence to require that, in States in 
which one agency contains both WIOA Title I-financially assisted 
programs and either a State Workforce Agency (formerly an SESA) or 
unemployment insurance, the Governor must develop a combined 
Nondiscrimination Plan. The Governor is responsible for completion of 
the Nondiscrimination Plan in both instances. This change formalizes 
current practice in that every State submits one WIOA Methods of 
Administration. This provision also eliminates unnecessary duplication 
in that most components of the Plan would be the same for both types of 
entities, and both plans would be overseen by the State-level EO 
Officer identified in Sec.  38.28(a).
    The proposed rule made one minor change to paragraph (c)(1)(v) of 
this section: Changing the reference to proposed Sec.  38.40 to reflect 
its new title. The NPRM added a new paragraph (c)(2)(iv) to require 
procedures for ensuring compliance with WIOA Section 188 and this part 
for protected categories other than disability. This revision was 
intended to correct an oversight from the previous rules that 
inadvertently did not require the Governor to include procedures to 
ensure compliance as to these protected categories. Finally, proposed 
Sec.  38.54(c)(2)(v) added a provision requiring the procedures 
discussed in that paragraph to ensure that recipients comply not just 
with Section 504 and WIOA Section 188 and this part, but also with 
Title II of the ADA, as amended, if applicable to the recipient. Title 
II of the ADA applies only to ``public entities,'' which include State 
or local governments and any of their departments, agencies, or other 
instrumentalities.\316\ We received four comments on Sec.  38.54.
---------------------------------------------------------------------------

    \316\ 42 U.S.C. 12131.
---------------------------------------------------------------------------

    Comment: Several advocacy organizations supported the requirement 
that the Governor implement a Nondiscrimination Plan for State 
Programs. One advocacy organization recommended that additional 
language be added to Sec.  38.54 to ensure that the Nondiscrimination 
Plan ``will be made available in alternative, accessible formats upon 
request.'' Another advocacy organization supported the proposed rule 
and stated that the new title and restatement of obligations on the 
part of States' chief executives for ensuring nondiscrimination in WIOA 
programs emphasize to States the importance of proper implementation of 
Section 188 of WIOA. Other advocacy organizations supported making the 
Nondiscrimination Plan publicly available on the Governor's or State 
Workforce Agency's Web site. They also recommended specific revisions 
to Sec.  38.54(c)(2)(iii) to ensure that the plan includes a system for 
reviewing that recipients have demonstrated sufficient resources and 
program designs that will allow them to meet the needs of groups 
protected by these regulations, including LEP individuals. Finally, 
they recommended that Sec.  38.54(c)(2)(viii) be revised to require 
that supporting documentation to show that commitments made in the 
Nondiscrimination Plan have been and/or are being carried out include 
``a comparison of the race/ethnicity, sex, age, disability, limited 
English proficiency, and language spoken of the State and local 
workforce area populations with data on the number of applicants, 
registrants, participants and terminees in each group.''
    Response: CRC appreciates commenters' suggestions to bolster the 
requirements included in the Nondiscrimination Plan, but finds the 
final rule sufficient to address the commenters' concerns. CRC 
disagrees that Sec.  38.54(c)(2)(iii) should be revised to include a 
system for reviewing that recipients have ``demonstrate[ed] sufficient 
resources and program designs'' to comply with WIOA Section 188 and 
this part, because that requirement is already contemplated by other 
paragraphs in Sec.  38.54(c), and by other sections in the final rule. 
For example, Sec.  38.54(c)(1)(ii) requires the Nondiscrimination Plan 
to describe how recipients have satisfied certain requirements, 
including the requirement in Sec. Sec.  38.28(a) and (b) and 38.29(e) 
that EO Officers have sufficient authority, staff, and resources to 
ensure compliance with WIOA Section 188 and this part; section 
38.54(c)(2)(i) requires a system for determining whether grant 
recipients and training providers are likely to comply with this part; 
section 38.54(c)(2)(vi) requires a system to ensure that EO Officers 
and members of recipients' staff can effectively carry out their equal 
opportunity and nondiscrimination responsibilities; section 
38.54(c)(2)(viii) requires supporting documentation to show that 
commitments made in the Nondiscrimination Plan are being carried out; 
and Sec.  38.54(c)(2)(vii) requires procedures for obtaining prompt 
corrective action when noncompliance is found. Accordingly, the final 
rule already contemplates

[[Page 87190]]

systems for reviewing that recipients have demonstrated sufficient 
resources and program designs to ensure compliance with WIOA Section 
188 and this part.
    The final rule also addresses the issue raised by the commenters 
regarding supporting documentation that compares demographic data to 
the number of applicants, registrants, participants and terminees in 
each group. Proposed Sec.  38.54(c)(2)(viii)(A)-(F) lists several 
examples of the types of documents Governors must use to show that the 
commitments made in the Nondiscrimination Plan have been and/or are 
being carried out. The examples listed in paragraphs (c)(2)(viii)(A)-
(F) are not exhaustive and generally capture the commenters' concerns 
about data comparisons. For example, Sec.  38.54(c)(2)(viii)(B) 
requires copies of monitoring instruments and Sec.  
38.54(c)(2)(viii)(E) requires that reports of monitoring reviews and 
reports of follow-up actions taken where violations have been found be 
submitted with the Nondiscrimination Plan.
    As a practical matter, such monitoring includes the Governor's 
required statistical or other quantifiable analyses of recipients' 
records and data under Sec.  38.41, such as records on applicants, 
registrants, eligible applicants/registrants, participants, terminees, 
employees and applicants for employment by race/ethnicity, sex, limited 
English proficiency, preferred language, age and disability 
status.\317\ CRC believes these provisions collectively result in the 
requirement to analyze comparison data that the commenters suggest. 
Moreover, CRC expects that in fulfilling their monitoring obligations 
under this part, State-level EO Officers will use whatever data are 
available to them, including population data and performance data, to 
ensure that State Programs comply with WIOA Section 188 and this part. 
Therefore, CRC declines to impose an additional requirement in this 
provision.
---------------------------------------------------------------------------

    \317\ See Sec.  38.41(b)(2). This provision excludes LEP and 
preferred language data for employees and applicants for employment.
---------------------------------------------------------------------------

    With regard to the commenters' request that Nondiscrimination Plans 
be publicly available on the Governor's or State Workforce Agency's Web 
site, CRC encourages publication as a best practice. However, CRC 
declines to impose this requirement at this time. CRC recognizes that 
some States currently post important excerpts of their Methods of 
Administration on their Web sites, and anticipates they will continue 
this practice with their Nondiscrimination Plans. CRC reminds the 
Governors that, if the Plan is available on the Governor's Web site, it 
must be in an accessible format for individuals with disabilities.\318\
---------------------------------------------------------------------------

    \318\ See Sec.  38.15(a)(5).
---------------------------------------------------------------------------

    Comment: A State agency asked whether Sec.  38.54 required the 
State to have a combined plan where the agency with oversight over WIOA 
does not administer the employment service and unemployment insurance 
programs.
    Response: Each State must submit one combined Nondiscrimination 
Plan that covers all State Programs, as defined in 38.4(kkk). As 
explained in the NPRM, this formalizes the practice under WIA that 
every State submitted one Methods of Administration. It also eliminates 
unnecessary duplication. To highlight this, the NPRM proposed changing 
the optional best practice listed in the 1999 and 2015 rules (that 
certain States ``should'' develop a combined plan), to a requirement 
(that those same States ``must'' develop a combined Plan). The 
commenter should note that the ``combined Nondiscrimination Plan'' 
referenced in Sec.  38.54(a) is not a reference to the ``Combined 
Plan'' described in section 103 of WIOA.
    Pursuant to Sec.  38.31(g), State-level EO Officers must oversee 
the development and implementation of the State's Nondiscrimination 
Plan.
Summary of Regulatory Changes
    For the reasons set forth above and in the NPRM and considering the 
comments received, CRC finalizes Sec.  38.54 as proposed.
Schedule of the Governor's Obligations Regarding the Nondiscrimination 
Plan Sec.  38.55
    Proposed Sec.  38.55 revised the title of this section and 
generally retained the existing schedule that Governors follow for 
their Methods of Administration under the 2015 rule, and that they also 
followed under the 1999 rule. In proposed Sec.  38.55, CRC intended to 
minimize the Governor's burden by allowing sufficient time to switch 
from the existing Methods of Administration to the new 
Nondiscrimination Plan. Therefore, proposed Sec.  38.55 revised 
paragraph (a) to allow Governors an additional 180 days to develop and 
implement a Nondiscrimination Plan consistent with the requirements of 
this rule--either within 180 days of the date on which this final rule 
is effective or within 180 days of the date on which the Governor would 
have been required to review and update the Methods of Administration 
under the 2015 rule, whichever is later.
    Proposed paragraph (b) also retained the previous requirement that 
the Governor promptly update the Nondiscrimination Plan whenever 
necessary and submit the changes made to the Director in writing at the 
time the updates are made.
    Proposed paragraph (c) preserved the previous rule's requirement 
that the Governor review the plan every two years, determine whether 
changes are necessary, and, if so, make the changes and submit them to 
the Director. We received one comment on Sec.  38.55.
    Comment: A State agency stated that the Governor's administration 
and leadership in State workforce agencies often turn over quickly with 
little transitional training, resulting in loss of knowledge. The 
commenter noted that in the past CRC had not communicated with state-
level staff to assure prompt compliance when State Methods of 
Administration plans were scheduled for updating. In order to ensure 
smooth transitions and communication between CRC and the States, the 
commenter proposed additional provisions that outline EO Officer 
obligations in the event of political transitions. The commenter stated 
that these provisions should include a transition plan so that when one 
EO Officer is outgoing, the new EO Officer is on notice of upcoming 
deadlines and immediate obligations. The commenter also recommended 
that CRC require and direct all communications, at least in carbon copy 
form, to recipients to the EO Officer as well.
    Response: CRC appreciates the commenter's suggestions for effective 
communication between States and CRC during transition periods. While 
CRC strongly recommends that Governors create transition plans, as the 
commenter suggests, CRC does not require such plans in this rule. The 
obligation to comply with this part remains with the office of the 
Governor, regardless of turnover, and the Governor and the State-level 
EO Officer remain responsible for ensuring compliance in all State 
Programs. As stated in the discussion of Sec.  38.28 in the preamble, 
we expect that State-level EO Officers will complete their required 
tasks, regardless of political turnover. For these reasons, we decline 
to create transition plans for States, to adopt a provision that 
explicitly requires Governors to develop transition plans, or to 
outline specific State-level EO Officer obligations during political 
transitions. We reiterate our commitment to provide technical 
assistance to both Governors and the State-level EO Officers to help 
them fulfill their obligations under this part.

[[Page 87191]]

CRC is committed to ensuring that State-level EO Officers, as the 
liaisons with CRC, are fully informed of their obligations regarding 
Nondiscrimination Plans, but decline to incorporate the suggestion that 
CRC carbon copy the EO Officer in all circumstances as unnecessary.

Subpart D--Compliance Procedures

Evaluation of Compliance Sec.  38.60
    Proposed Sec.  38.60 modified the title of this section and 
retained its language, with the exception of a minor technical edit. 
The proposed rule added the phrase ``the ability to comply or'' in the 
first sentence to explain the standard of review for grant applicants 
regarding the nondiscrimination and equal opportunity provisions of 
WIOA Section 188 and this part. This language is parallel to the 
language in proposed Sec.  38.25 regarding written assurances. CRC 
received no comments on this provision and makes one technical 
correction to Sec.  38.60 as proposed. For the sake of clarity, CRC 
separates the reference to compliance reviews of grant recipients to 
determine their ability to comply from the reference to compliance 
reviews of recipients to determine their compliance. CRC makes this 
change to increase the ease of reading this provision and intends no 
substantive change.
Authority To Issue Subpoenas Sec.  38.61
    Proposed Sec.  38.61 changed the title of this section and updated 
its citation to section 183(c) of WIOA, which authorizes the issuance 
of subpoenas.\319\ CRC received no comments this section but is 
reorganizing it to clarify its parts. No substantive changes are 
intended by the reorganization.
---------------------------------------------------------------------------

    \319\ 29 U.S.C. 3243(c).
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Compliance Reviews
Authority and Procedures for Pre-Approval Compliance Reviews Sec.  
38.62
    Proposed Sec.  38.62 proposed several changes from the 1999 and 
2015 rules, including adding a new provision to paragraph (b) that 
required Departmental grantmaking agencies to consult with the Director 
to determine if CRC had issued a Notice to Show Cause \320\ or a Final 
Determination \321\ against an applicant identified as a probable 
awardee for violating the nondiscrimination and equal opportunity 
provisions of WIOA and this part.
---------------------------------------------------------------------------

    \320\ Pursuant to Sec.  38.66(b).
    \321\ Pursuant to Sec. Sec.  38.95 and 38.96.
---------------------------------------------------------------------------

    Proposed paragraph (c) added new language requiring that the 
grantmaking agency consider, in discussing with the Director, the 
information obtained through the consultation described in paragraph 
(b), as well as any other information provided by the Director, in 
determining whether to award the grant(s). We received no comments on 
this provision and adopt Sec.  38.62 as proposed, with the exception of 
a technical modification to place paragraph (d)(2) on a new line.\322\
---------------------------------------------------------------------------

    \322\ Cf. CRC WIOA NPRM, supra note 70, at 4564 (incorrectly 
labeling Sec.  38.62(d)(2) as ``[Reserved]'').
---------------------------------------------------------------------------

Authority and Procedures for Conducting Post-Approval Compliance 
Reviews Sec.  38.63 and Procedures for Concluding Post-Approval 
Compliance Reviews Sec.  38.64
    Proposed Sec. Sec.  38.63 and 38.64 retained the exact same 
language as in the parallel sections in the 1999 and 2015 rules, with 
the exception of the revisions made to their titles. We received no 
comments on these sections, and adopt Sec. Sec.  38.63 and 38.64 as 
proposed.
Authority To Monitor the Activities of a Governor Sec.  38.65
    Proposed Sec.  38.65 modified the title of this section and 
retained the language in paragraphs (a) and (b) from the 1999 and 2015 
rules. Proposed paragraph (c) set out the enforcement actions that CRC 
may take as a result of Governors' failure to come into compliance with 
their monitoring obligations. We received seven comments on Sec.  
38.65.
    Comment: Some State agencies and advocacy groups requested that CRC 
provide technical assistance if the Governor's performance is deemed 
inadequate or when a State asks for technical assistance to ensure 
compliance with the proposed rule. Similarly, another State agency 
stated that if a Governor has been issued a Letter of Findings, CRC 
should provide technical assistance to help the Governor become 
compliant. The commenter said the Governor should be given a timeframe 
in which CRC is required to respond to the Governor or designee's 
questions, requests, and results. Furthermore, the commenter suggested 
that CRC develop ``Good Practice or useful tools'' that States could 
use as a template. The commenter recommended that CRC review 
preliminary findings with States to give States the opportunity to 
provide additional information to rectify or resolve a proposed 
finding.
    Response: CRC remains committed to ensuring that recipients comply 
with the nondiscrimination and equal opportunity provisions of this 
rule. As such, CRC's issuance of this final rule should provide clarity 
to States and other recipients in helping them meet their obligations. 
CRC also intends to issue guidance regarding this rule, and already has 
useful tools on its Web site, for example, the DOL LEP Guidance 
discussed regarding Sec.  38.9 and Promising Practices in Achieving 
Universal Access and Equal Opportunity: A Section 188 Disability 
Reference Guide.\323\ For States or other recipients that wish to 
request further help regarding compliance with the rule, CRC is 
available to provide technical assistance. For technical assistance, 
recipients are strongly encouraged to visit CRC's Web page at https://www.dol.gov/oasam/programs/crc/external-compliance-assistance.htm or 
contact CRC at U.S. Department of Labor, 200 Constitution Avenue NW., 
Room N-4123, Washington, DC 20210. [email protected], telephone 
(202) 693-6501 (VOICE) or (202) 877-8339 (Federal Relay Service--for 
TTY). CRC declines to adopt a timeframe in this rule for such 
assistance, due to the fact-specific nature of technical assistance 
requests.
---------------------------------------------------------------------------

    \323\ Section 188 Disability Reference Guide, supra note 264.
---------------------------------------------------------------------------

    Regarding the commenter's request that CRC review preliminary 
findings with States to give States the opportunity to provide 
additional information to rectify or resolve a proposed finding, that 
is one of the purposes of issuing either a Letter of Findings or an 
Initial Determination under Sec. Sec.  38.64 and 38.87, respectively. 
For recipients whose programs or activities have been found 
noncompliant, CRC routinely offers settlement or conciliation 
agreements that list the steps recipients need to follow to come into 
compliance. Once an agreement is in place, CRC does of course provide 
technical assistance regarding the agreement. Accordingly, the final 
rule addresses the commenters' concerns without modification.
    Comment: One commenter stated that CRC could put more 
responsibility on Governors to assure federal funds are used to uphold 
civil rights for individuals with disabilities.
    Response: CRC appreciates the commenter's concern and believes that 
this final rule appropriately sets forth the responsibility of 
Governors. These provisions are intended to strengthen the Governor's 
authority to monitor and ensure compliance with recipients' obligations 
as to individuals with disabilities and all other protected groups. 
Specifically, CRC also has strengthened its sections on disability,

[[Page 87192]]

including Sec.  38.15 and related definitions, to increase 
accountability to ensure that civil rights for individuals with 
disabilities are well supported, including that individuals with 
disabilities have equal access to WIOA Title I-funded programs and that 
recipients communicate as effectively with them as with others. Because 
of the revisions already set forth in this final rule, CRC declines to 
modify the language in this provision.
    Comment: Two advocacy organizations recommended that the Director 
be required to review the adequacy of the Governor's Nondiscrimination 
Plan, by replacing the term ``may'' with ``shall.''
    Response: CRC understands the commenters' concerns but declines to 
make this modification. CRC will continue to review Nondiscrimination 
Plans submitted by States. However, CRC believes it critical that the 
Director maintain flexibility and discretion as to when to review the 
adequacy of the Nondiscrimination Plan based on enforcement priorities 
and resources. Moreover, the discretionary language in proposed 
paragraph Sec.  38.65(c) is the same found in Sec.  38.65(a) of the 
2015 rule, and Sec.  37.65(a) of the 1999 rule. Both provisions permit 
the Director to review the adequacy of the Plans and compliance with 
this subpart without restriction.
    Comment: A State agency recommended that Sec.  38.65 be deleted, 
claiming that neither WIOA nor Title VI gave the Department the 
authority over Governors found in Sec.  38.65.
    Response: CRC disagrees with the commenters' characterization of 
its authority under WIOA and Title VI. Both Title VI and WIOA Section 
188 prohibit those who receive federal financial assistance from 
discriminating against individuals in the classes protected under these 
statutes. WIOA Section 188(b) authorizes the Secretary of Labor to take 
action whenever the Secretary finds that a State or other recipient has 
failed to comply with the nondiscrimination obligation in Section 
188(a) or with the regulations prescribed to carry out those 
provisions. The Secretary has delegated enforcement and rule making 
authority under Section 188(e) to CRC. Because Governors receive 
federal financial assistance under WIOA Title I programs and services, 
CRC has the requisite authority over Governors to enforce the 
provisions in the final rule. For these reasons, CRC declines to delete 
this provision.
    CRC makes one technical revision to Sec.  38.65(b), removing the 
unnecessary modifier ``WIOA Title I'' from the term ``recipient,'' 
because this part applies to ``recipients'' as defined in Sec.  
38.44(zz). This change is made for the sake of clarity and consistency 
throughout the final rule, and no substantive change is intended.
Notice To Show Cause Issued to a Recipient Sec.  38.66
    Proposed Sec.  38.66 merged the 2015 rule's Sec. Sec.  38.66 and 
38.67,\324\ the latter of which outlined the contents of a notice to 
show cause. This section proposed to retain most of the language in the 
2015 rule's Sec.  38.66 and all of the language in the 2015 rule's 
Sec.  38.67.
---------------------------------------------------------------------------

    \324\ 29 CFR 37.66, 37.67 (1999 rule).
---------------------------------------------------------------------------

    Proposed paragraph (a) provided that the Director may issue a 
Notice to Show Cause when a recipient's failure to comply with the 
requirements of this part results in the inability of the Director to 
make a finding. This section retained the three examples set forth in 
the prior rule, but renumbered them. Proposed paragraph (a)(1) replaced 
the 30-day requirement for recipients to submit the requested 
information, records, and/or data with ``the timeframe specified'' in 
the Notification letter. This minor change reflects CRC's common 
practice of including a timeframe for a response in the Notification 
Letter and eliminated its redundancy from the regulatory text.
    Proposed paragraph (b) expanded the circumstances in which the 
Director may issue a Notice to Show Cause by allowing the Director to 
issue the Notice prior to issuing a Final Determination. Proposed 
paragraph (c) retained the same language found in the 2015 rule's Sec.  
38.67, and the 1999 rule's Sec.  37.67. We received one comment in 
support of these revisions.
    Comment: A State agency commented that the proposed rule would 
provide Governors and other recipients with an additional opportunity, 
as compared to the existing framework, to take corrective or remedial 
actions to come into compliance before enforcement proceedings were 
initiated. Furthermore, the commenter stated that the proposed rule 
would provide an additional opportunity for due process, allowing the 
Governor to come into compliance or enter into a conciliation agreement 
before a final determination is rendered.
    Response: CRC agrees that the proposed rule gives Governors and 
recipients adequate time to come into compliance or negotiate a 
conciliation agreement regarding the violation(s) at issue before CRC 
issues a Final Determination. For the reasons set forth in the NPRM and 
considering the comments received, CRC finalizes proposed Sec.  38.66 
as proposed.
Methods by Which a Recipient May Show Cause Why Enforcement Proceedings 
Should Not Be Instituted Sec.  38.67
    Proposed Sec.  38.67 changed the section title and removed 
reference to the letter of assurance because CRC proposed discontinuing 
use of that letter. This section also updated the cross-references for 
procedures related to correcting violations under Sec. Sec.  38.91 
through 38.93. CRC received no comments on this provision and adopts 
Sec.  38.67 as proposed.
Failing to Show Cause Sec.  38.68
    Proposed Sec.  38.68 retained the existing language from the 1999 
and 2015 rules, with the slight modification of replacing the term 
``must'' with ``may.'' This revision was intended to more accurately 
reflect the Director's prosecutorial discretion in bringing matters to 
enforcement. Nothing in Section 188 compels the Director to refer for 
enforcement every violation of Section 188 or this part. CRC received 
no comments on this provision and adopts Sec.  38.68 as proposed.
Complaint Processing Procedures
Complaint Filing Sec.  38.69
    Proposed Sec.  38.69 combined the 2015 rule's Sec. Sec.  38.70, 
38.71, and 38.72 into one section to improve readability.\325\ We 
retained most of the language from these sections, with some revisions 
to the text.
---------------------------------------------------------------------------

    \325\ 29 CFR 37.70 through 37.72 (1999 rule).
---------------------------------------------------------------------------

    Proposed paragraph (a) maintained the language from the 1999 and 
2015 rules. Proposed paragraph (a)(1), however, added a list of the 
bases upon which a complaint may be filed--race, color, religion, sex 
(including pregnancy, childbirth, or related medical conditions, gender 
identity, and transgender status), national origin (including limited 
English proficiency), age, disability, political affiliation or belief, 
citizenship status, or participation in any WIOA Title I-financially 
assisted program or activity. Consistent with proposed Sec.  38.19, 
proposed paragraph (a)(2) added retaliation as a basis for filing a 
complaint. Proposed paragraph (b) expanded the option for filing to 
include electronic filing. Proposed paragraph (c) removed the reference 
to the Director to eliminate redundancy \326\ and added that the 
complaint must be filed within 180 days of the alleged

[[Page 87193]]

discrimination or retaliation. We received two substantive comments on 
these proposed changes.
---------------------------------------------------------------------------

    \326\ Sec.  38.69(b) addresses with whom the complaint must be 
filed.
---------------------------------------------------------------------------

    Comment: A State agency proposed that the list of the bases upon 
which a complaint may be filed reflect the categories identified in 
applicable statutes. The commenter asserted that any bases beyond the 
statutory language reflect CRC's interpretation and may not be an 
accurate statement of the law to which recipients are subject.
    Response: The commenter refers to the parenthetical language added 
to sex and national origin as prohibited bases for discrimination. As 
discussed previously, CRC's inclusion of the parentheticals is 
consistent with the current state of the law as to sex and national 
origin discrimination. Again, CRC believes that, by incorporating this 
language, complainants will be more knowledgeable about and aware of 
the protected bases under the statute for which they may file a 
complaint. To maintain consistency with other provisions in the final 
rule, including Sec. Sec.  38.7 and 38.9, the inclusion of those 
categories are appropriate in Sec.  38.69.
    Comment: A disabilities advocacy group recommended that CRC add 
``the designated EO Officer of the recipient'' to Sec.  38.69(b) so 
that a person or the person's representative may file a complaint with 
either ``the recipient, the designated EO [O]fficer of the recipient, 
or the [D]irector.''
    Response: CRC agrees that Sec.  38.69(b) should more clearly 
identify with whom a complainant should file the complaint if 
proceeding with the recipient-level complaint process. Thus, CRC amends 
this provision to be consistent with the language in the equal 
opportunity notice.
Summary of Regulatory Changes
    For the reasons set forth above and in the NPRM and considering the 
comments received, CRC finalizes proposed Sec.  38.69 with a 
modification in paragraph (b) stating that a complaint may be filed 
with, on the one hand, the recipient's EO Officer or the person the 
recipient has designated for that purpose or, on the other hand, the 
Director.
Required Contents of Complaint Sec.  38.70
    Proposed Sec.  38.70 combined the 2015 rule's Sec. Sec.  38.73 and 
38.74 into one section and retained almost all of their 
provisions.\327\ Proposed Sec.  38.70 updated the language in this 
combined section to include the option of electronic filing and 
provided additional information on how to electronically access 
complaint forms. We received two comments on Sec.  38.70.
---------------------------------------------------------------------------

    \327\ 29 CFR 37.73, 37.74 (1999 rule).
---------------------------------------------------------------------------

    Comment: A private citizen recommended that CRC coordinate local 
assistance for individuals who want to file a discrimination complaint. 
The commenter stressed that individuals need guidance on compliance 
with the rules, procedures, and bases for a complaint.
    Response: We decline to provide in the final rule that CRC 
coordinate local assistance for individuals who want to file a 
discrimination complaint. While local assistance may be beneficial, CRC 
is able to offer assistance through the resources on our Web site, and 
by telephone and email. In local areas, we strongly encourage 
individuals to view the equal opportunity notice posted on recipients' 
premises (and published in this rule in Sec.  38.35), which provides 
information on how to file a complaint with the recipient or CRC. The 
poster must be available on the recipient's Web site, posted in 
conspicuous physical locations and provided to each participant and 
employee. Individuals may also contact recipients' EO Officers for 
assistance. Recipients are required to make their EO Officers' contact 
information available to the public under Sec.  38.29(c).
    Those who need further assistance in filing a complaint may also 
visit CRC's Web site at https://www.dol.gov/oasam/programs/crc/external-enforc-complaints.htm. CRC likewise invites members of the 
public to visit our Frequently Asked Questions page at https://www.dol.gov/oasam/programs/crc/external-enforce-faq.htm. For additional 
assistance, please contact CRC's External Enforcement division at the 
U.S. Department of Labor, 200 Constitution Avenue NW., Room N-4123, 
Washington, DC 20210. [email protected], telephone (202) 
693-6502 (VOICE) or (202) 877-8339 (Federal Relay Service--for TTY).
    Comment: A State agency commented that Sec.  38.70 of the proposed 
rule would waive the ``signature'' requirement currently in place that 
makes a complaint a legally filed document. The commenter recommended 
that any hard copy filed should be required to have a signature.
    Response: CRC disagrees with the commenter that electronic filing 
would waive the signature requirement. The purpose of electronic filing 
is to ease the filing process for complainants, not to eliminate the 
signature requirement. Proposed Sec.  38.70(d) requires the ``written 
or electronic signature'' of the complainant or the complainant's 
representative. As mentioned in the discussion in Sec.  38.35, CRC 
believes that a signature, including an electronic one, helps support 
the legitimacy of a complaint as it signifies that the contents of the 
complaint are grounded in fact, and to the best of the complainant's 
knowledge, the information is being presented in good faith.
Right to Representation Sec.  38.71
    Proposed Sec.  38.71 revised the title and section number of the 
2015 rule's Sec.  38.75, but retained its language. CRC received no 
comments on this provision and adopts Sec.  38.71 as proposed.
Required Elements of a Recipient's Complaint Processing Procedures 
Sec.  38.72
    Proposed Sec.  38.72 revised the title and section number of the 
2015 rule's Sec.  38.76.\328\ This section retained the requirements 
for recipients' complaint processing procedures from the 1999 and 2015 
rules, but added paragraph (b)(1)(iii) obligating recipients to give 
complainants a copy of the equal opportunity notice in Sec.  38.35.
---------------------------------------------------------------------------

    \328\ 29 CFR 37.76 (1999 rule).
---------------------------------------------------------------------------

    Proposed paragraph (b)(1)(iv) also added the requirement that 
recipients provide notice that the complainant has the right to request 
and receive, at no cost, auxiliary aids and services, language 
assistance services, and that this notice will be translated into non-
English languages, in accordance with proposed Sec. Sec.  38.4(h) and 
(i), 38.34, and 38.36.
    Proposed paragraph (c)(1) created a new provision that stated that 
alternative dispute resolution (ADR) may be attempted any time after a 
written complaint has been filed with the recipient.
    Finally, proposed paragraph (c)(3)(ii) modified the language of the 
2015 rule's Sec.  38.76(c)(3)(ii), by providing in the last sentence 
that, ``If the Director determines that the agreement [reached under 
ADR] has been breached, the complaint will be reinstated and processed 
in accordance with the recipient's procedures.'' We received three 
comments on Sec.  38.72.
    Comment: An individual commenter stated that allowing ADR methods 
may give recipients too much power to coerce complainants. The 
commenter believed that if recipients are given the option to 
discipline themselves, the punishment will be as minute as possible. 
This could result in unresolved or unreported issues, which will allow 
the discriminating acts to continue or worsen.

[[Page 87194]]

    Response: CRC recognizes the commenters' concerns, but believes 
that ADR can be an effective tool for both recipients and complainants. 
First, CRC disagrees that ADR within the meaning of this part is a 
process in which the recipient may unilaterally decide the outcome of 
the complaint. Instead, under these regulations ADR is a process to 
reach a mutually satisfactory resolution.
    Second, CRC highlights that, under proposed Sec.  38.72(c)(2), ADR 
is voluntary and the choice whether to use ADR or the customary process 
rests with the complainant. This allows for the complainant to have 
vital input in the process used for resolving the dispute. Moreover, as 
proposed Sec.  38.72(c)(3)(ii) requires, if the Director determines 
that there is a breach of an ADR agreement, the complaint will be 
reinstated. CRC believes that this approach enables the complainant to 
have a fair process in resolving the discrimination complaint.
    Comment: A few commenters requested clarification on the proposed 
rule's complaint processing procedures. One State agency commented that 
Sec.  38.72(c)(2) allows the complainant to choose ADR but Sec.  38.85, 
which allows for ADR on the federal level, requires consent by both the 
complainant and the respondent. The commenter requested clarification 
on whether CRC could make ADR at the recipient level require mutual 
consent. The commenter reasoned that ADR would not be effective if both 
parties were not actively participating. The commenter also stated that 
Sec.  38.72(c)(1) needs to clearly state that the issuance of a Notice 
of Final Action by the recipient ends the complaint and terminates the 
complainant's ability to request ADR. The commenter stated that CRC 
needs to clarify that, after a recipient issues a Notice of Final 
Action, their only remaining option is to appeal to the Department 
under Sec.  38.75.
    Response: CRC agrees with the commenter that ADR is effective when 
both parties consent to ADR and actively participate. However, CRC 
declines to remove the complainant's ability to compel ADR at the 
recipient level. In that case, ADR is designed to encourage the 
complainant to resolve the complaint informally with the recipient, 
thus, the recipient cannot block the ADR process by withholding 
consent.
    Regarding the timing of ADR, CRC agrees with the commenter that a 
written Notice of Final Action by the recipient ends the complainant's 
ability to compel ADR during the recipient-level complaint process. 
CRC's goal is to encourage prompt resolution of complaints at the 
earliest possible stage of the process, however, CRC has always 
contemplated that recipient-level complaint processing procedures, 
including election of ADR, would be completed within 90 days.\329\ To 
clarify that expectation, CRC revises Sec.  38.72(c)(1) to reflect that 
the recipient's issuance of a Notice of Final Action ends the 
complainant's ability to compel ADR during the recipient-level process. 
CRC notes that the parties are encouraged to reach settlement at any 
time.
---------------------------------------------------------------------------

    \329\ See Sec.  38.76.
---------------------------------------------------------------------------

    If the complainant files with CRC, CRC may offer the opportunity 
for both parties to engage in ADR under proposed Sec.  38.85. In this 
instance, mutual consent is necessary because CRC is neither the 
complainant nor the respondent to the complaint. Again though, the 
parties are encouraged to conduct voluntary settlement discussions at 
any time in the complaint process.
    Comment: A disabilities advocacy group made numerous 
recommendations for additional language to improve the clarity and 
efficiency of the complaint processing procedures. The commenter 
suggested that CRC ``draft language that forwards `reasonable 
accommodations' into the entire complaint process,'' and recommended 
that all communications related to proposed Sec.  38.72 between the 
recipient and complaint be done in a format that is acceptable to the 
complainant and at a level reflective of the complainant's ability to 
understand all materials presented.
    The commenter's recommendations also included creating a time frame 
the Director must follow in the complaint process, adding language that 
defines the relationship between specific types of entities and what 
federal protections govern them so that individuals and recipients have 
a clear understanding of the federal governance for individual 
protection. The commenter suggested creating comprehensive standards 
for investigations, including language to ensure due diligence on 
behalf of the recipient investigating a complaint. The commenter stated 
it is imperative that all complaint investigations conducted by the 
recipient have a strict conflict of interest component that protects 
the complainant's rights to a full and unbiased investigation, 
including strict protections against a recipient's influence over any 
investigation such as providing for an independent facilitator to 
investigate complaints. This should be available to both small and 
large recipients.
    Further, the commenter encouraged outlining procedures for the 
complaint process from the perspective of the complainant, suggesting 
the outline should be as detailed as that of the recipient outline with 
dates, procedures, how to check the progress of your complaint, contact 
information of the entity investigating the complaint, as well as all 
other related information.
    Response: CRC appreciates the commenter's suggestions for fair, 
impartial, and effective complaint processing procedures at the 
recipient and federal level. We decline to implement the commenter's 
recommendations, however, because the regulations already provide 
adequate safeguards to ensure such a fair, impartial, and effective 
procedure. Regarding the commenter's first recommendation, complainants 
are of course free to request reasonable accommodations and auxiliary 
aids and services from recipients or CRC with respect to the complaint 
process. This may include requests for information in accessible 
formats or at a reading level understandable to the complainant. The 
availability of such accommodations is addressed in Sec.  38.14 and 
need not be repeated in Sec.  38.72. Moreover, Sec.  38.15 requires 
recipients to take appropriate steps to ensure that communications with 
individuals with disabilities are as effective as communications with 
others. This requirement includes the recipient's complaint processing 
procedures under Sec.  38.72. It would be contrary to the ADA, however, 
for recipients or CRC to make assumptions about a complainant's 
literacy abilities on the basis of a disability in advance of a request 
for accommodation.
    As to the request for time frames for the Director, CRC recognizes 
that each discrimination complaint filed, including those concerning 
individuals with disabilities, presents its own set of unique facts. 
This variability means that the Director and CRC staff need flexibility 
to investigate and analyze each complaint in a timeframe that allows 
for the full consideration of the allegations and defenses presented. 
The regulations set forth in this part provide clear complaint 
processing procedures for both recipients and complainants. For these 
reasons CRC declines to set a time frame for the Director to resolve 
complaints.
    Next, the request that the rule include a discussion of the federal 
protections that govern specific types of entities is beyond the scope 
of this rule, which only addresses recipient and Governor obligations 
under Section 188 of WIOA. CRC also declines to implement the 
commenter's suggested changes

[[Page 87195]]

regarding comprehensive investigation standards, including an 
independent facilitator to investigate complaints, to prevent conflicts 
of interest and undue influence, and to ensure recipients' due 
diligence and a full and unbiased investigation. CRC believes those 
safeguards already exist in the final rule, and that recipients' EO 
Officers must serve as the type of independent facilitator to which the 
commenter refers. Under Sec.  38.31(d), recipients' EO Officers are 
charged with overseeing the recipient-level complaint process, and must 
do so without any conflict of interest, pursuant to Sec.  38.30. Small 
recipients must also establish complaint procedures under Sec.  38.32. 
As an additional safeguard, complainants may appeal to CRC from the 
recipient's final action on the complaint.
    Finally, the rule gives the complainant sufficient notice of how to 
check the progress of a complaint, the contact information of the 
entity investigating the complaint, as well as other related 
information. As stated above, EO Officers' information is public and 
complainants may use that information and the contact information in 
the equal opportunity notice to check on the status of complaints. 
Sections 38.69 through 38.85 provide comprehensive information about 
complaint procedures for both complainants and recipients.
Summary of Regulatory Changes
    For the reasons set forth above and in the NPRM, and in 
consideration of the comments received, CRC finalizes proposed Sec.  
38.72, with two modifications. First, CRC makes a technical correction 
by changing ``issued'' to ``received'' in paragraph (b)(5)(ii) to be 
consistent with the standard in Sec. Sec.  38.74 and 38.75. Second, CRC 
revises Sec.  38.72(c)(1) to reflect that a complainant may attempt ADR 
only until the recipient has issued a Notice of Final Action.
Responsibility for Developing and Publishing Complaint Processing 
Procedures for Service Providers Sec.  38.73
    Proposed Sec.  38.73 modified the title and section number of the 
2015 rule's Sec.  38.77 but retained the same language. CRC received no 
comments on this provision and adopts Sec.  38.73 as proposed.
Recipient's Obligations When It Determines That It Has No Jurisdiction 
over a Complaint Sec.  38.74
    Proposed Sec.  38.74 modified the title and section number of the 
2015 rule's Sec.  38.79 and retained most of its language with one 
modification.\330\ The proposed rule changed the term ``immediate'' to 
``within five business days of making such determination'' as the time 
frame in which a recipient must notify the complainant in writing that 
it does not have jurisdiction. CRC proposed this change to reduce 
ambiguity and provide a more definite timeframe within which the 
recipient must notify a complainant about the recipient's lack of 
jurisdiction so that the complainant may timely pursue the allegations 
with CRC. We received one comment on Sec.  38.74.
---------------------------------------------------------------------------

    \330\ 29 CFR 37.79 (1999 rule).
---------------------------------------------------------------------------

    Comment: One advocacy group commented that, in addition to 
notifying the complainant of the right to file with CRC, the notice 
should also provide guidance on the steps required to file with CRC, 
including ``steps and procedures, required forms, addresses, phone 
numbers, etc.''
    Response: We understand the commenter's concern but believe that 
the new obligation in Sec.  38.72(b)(1)(iii) to provide each 
complainant the equal opportunity notice contained in Sec.  38.35 will 
provide individuals with adequate information on how to file a 
complaint with CRC and how to contact CRC directly if they need 
additional assistance in filing a complaint. That notice contains CRC's 
physical and Web site addresses, and instructions for complaint filing.
If the Complainant Is Dissatisfied After Receiving a Notice of Final 
Action Sec.  38.75
    Proposed Sec.  38.75 retained most of the language of the 1999 and 
2015 rules, but changed ``his/her'' to ``the complainant's,'' and 
clarified that this section applies whenever a recipient issues a 
Notice of Final Action before the end of the 90-day period for 
recipients to resolve a complaint. CRC received no comments on this 
provision and adopts Sec.  38.75 as proposed.
If a Recipient Fails To Issue a Notice of Final Action Within 90 Days 
After the Complaint Was Filed Sec.  38.76 and Extension of Deadline To 
File Complaint Sec.  38.77
    Proposed Sec. Sec.  38.76 and 38.77 retained the same language as 
in the 1999 and 2015 rules, with the exception of the revisions made to 
their titles and corresponding section numbers. CRC received no 
comments on these sections and adopts Sec. Sec.  38.76 and 38.77 as 
proposed.
Determinations Regarding Acceptance of Complaints Sec.  38.78
    Proposed Sec.  38.78 retained the language from the 2015 rule's 
Sec.  38.82, with minor modifications including changing the word 
``determine'' to ``decide'' in the introductory sentence to distinguish 
the Director's decision whether to accept a complaint from the 
Director's Initial and Final Determinations. CRC received no comments 
on this provision and adopts Sec.  38.78 as proposed.
When a Complaint Contains Insufficient Information Sec.  38.79
    Proposed Sec.  38.79 retained the language from the 2015 rule's 
Sec.  38.83, except for removing and replacing gender-specific pronouns 
and revising its title. Proposed paragraph (a) added language 
explaining that if the complaint does not contain enough information 
``to identify the respondent or the basis of the alleged 
discrimination, the timeliness of the complaint, or the apparent merit 
of the complaint,'' the Director must try to get the needed information 
from the complainant. Proposed paragraph (c) added that the Director 
must send a written notice of complaint closure to the complainant's 
last known address, ``email address (or other known method of 
contacting the complainant in writing.'' This change was intended to 
update the methods of written communication that are available. CRC 
received no comments on this provision and adopts Sec.  38.79 as 
proposed.
Lack of Jurisdiction Sec.  38.80, Complaint Referral Sec.  38.81, 
Notice That Complaint Will Not Be Accepted Sec.  38.82, Notice of 
Complaint Acceptance Sec.  38.83, and Contacting CRC About a Complaint 
Sec.  38.84
    Proposed Sec. Sec.  38.80-38.84 retained the language of the 2015 
rule's Sec. Sec.  38.84-38.88, with the exception of their titles and 
section numbers. CRC received no comments on these sections and adopts 
Sec. Sec.  38.80-38.84 as proposed.
Alternative Dispute Resolution Sec.  38.85
    Proposed Sec.  38.85 retained most of the language from the 2015 
rule's Sec.  38.89, with some modifications. This section replaced the 
reference to ``mediation'' with ``alternative dispute resolution 
(ADR)'' to encompass a broader array of procedures that may be used to 
resolve a complaint.
    Proposed paragraph (a) replaced the reference to ``the parties,'' 
with ``the complainant and respondent'' to clarify that the actual 
parties in an enforcement action that arises from a complaint filed 
under Section 188 or this part are the

[[Page 87196]]

recipient/respondent and CRC. WIOA Section 188 provides no private 
right of action. Proposed paragraph (b) removed the word ``issued'' 
from the 2015 rule's Sec.  38.89(b), which stated, ``The mediation will 
be conducted under guidance issued by the Director.'' This change was 
intended to allow guidance from the Director on ADR to be provided 
informally. Proposed paragraph (c) added that ADR may take place at any 
time after a complaint has been filed to maximize the opportunity for 
resolution of complaints through the ADR process. Proposed paragraph 
(d) created a new provision to notify recipients and complainants that 
ADR does not suspend CRC's investigation. CRC plans to continue to 
process and investigate complaints during ADR so that the complaint and 
its evidence will not become stale.
    CRC received no comments on this provision and adopts Sec.  38.85 
as proposed.
Notice at Conclusion of Complaint Investigation Sec.  38.86
    Proposed Sec.  38.86 retained the provisions in the 2015 rule's 
Sec.  38.90, but modified the title and section number. The proposed 
rule also added language at the end of paragraph (b) so that the 
recipient, complainant and grantmaking agency are aware of the 
procedural steps that CRC will follow under Sec. Sec.  38.87 and 38.88. 
CRC received no comments on this provision and adopts Sec.  38.86 as 
proposed.
Director's Initial Determination That Reasonable Cause Exists To 
Believe That a Violation Has Taken Place Sec.  38.87 and Director's 
Final Determination That No Reasonable Cause Exists To Believe That a 
Violation Has Taken Place Sec.  38.88
    Proposed Sec. Sec.  38.87 and 38.88 retained all of the existing 
language in the 2015 rule's Sec. Sec.  38.87 and 38.88, and only 
updated their titles and section numbers. CRC received no comments on 
these sections and adopts Sec. Sec.  38.91 and 38.92 as proposed.
When the Recipient Fails or Refuses To Take Corrective Action Listed in 
the Initial Determination Sec.  38.89
    Proposed Sec.  38.89 retained most of the language from the 2015 
rule's Sec.  38.93 with some modifications. Proposed Sec.  38.89 
replaced the mandatory language regarding enforcement actions the 
Director could take to allow for CRC's prosecutorial discretion, in 
accordance with Section 188(b) of WIOA.\331\ CRC received no comments 
on this provision and adopts Sec.  38.89 as proposed.
---------------------------------------------------------------------------

    \331\ 29 U.S.C. 3248(b).
---------------------------------------------------------------------------

Corrective or Remedial Action That May Be Imposed When the Director 
Finds a Violation Sec.  38.90
    In proposed Sec.  38.90, we retained the language from the 2015 
rule's Sec.  38.94 and only updated its section number and title. CRC 
received no comments on this provision and adopts Sec.  38.90 as 
proposed, with the exception of a technical edit to paragraph (b) to 
change ``must'' to ``may'' to make it consistent with the title of 
Sec.  38.90. CRC intends no substantive change with this revision.
Post-Violation Procedures Sec.  38.91
    Proposed Sec.  38.91 retained most of the existing language from 
the 2015 rule's Sec.  38.95, with a few modifications. The proposed 
rule updated the section number and changed the title. Additionally, we 
proposed to delete the paragraphs (b)(1)(iii)(C) and (b)(3)(iii), which 
referred to using ``both'' a written assurance and a conciliation 
agreement as closing documents for the same set of violations. As 
discussed in Sec.  38.92 of the final rule, this deletion reflects 
revisions to the circumstances under which a written assurance may be 
used. Finally, we proposed removing the inadvertent reference to a 
nonexistent paragraph (d) at the end of paragraph (a).
    CRC received no comments on this provision and adopts Sec.  38.91 
as proposed.
Written Assurance Sec.  38.92
    Proposed Sec.  38.92 clarified the corresponding provisions from 
the 1999 and 2015 rules to better explain when a written assurance 
rather than a conciliation agreement would be the appropriate 
resolution document. CRC received no comments on this provision and 
adopts Sec.  38.92 as proposed.
Required Elements of a Conciliation Agreement Sec.  38.93
    Proposed Sec.  38.93 retained the language in the 1999 and 2015 
rules,\332\ with some changes. We updated the section number and 
revised its title. Proposed paragraph (a) retained all of the language 
from the 1999 and 2015 sections. We added to the list of required 
elements of a conciliation agreement by creating a new provision in 
proposed paragraph (b) stating that the agreement ``[a]ddress the legal 
and contractual obligations of the recipient''; we renumbered the 
paragraphs; and we proposed a new paragraph (g) to require that a 
conciliation agreement provide that nothing in the agreement prohibits 
CRC from sending it to the complainant, making it available to the 
public, or posting it on the CRC or the recipient's Web site. The NPRM 
also inserted a new paragraph (h) to require that a conciliation 
agreement provide that in any proceeding involving an alleged violation 
of the conciliation agreement, CRC may seek enforcement of the 
agreement itself and shall not be required to present proof of the 
underlying violations resolved by the agreement. CRC believed that 
these revisions would more accurately reflect its current practice and 
align with the rules issued by other nondiscrimination enforcement 
agencies in the Department.\333\ We received one comment on proposed 
Sec.  38.93.
---------------------------------------------------------------------------

    \332\ 29 CFR 37.97 (1999 rule); 29 CFR 38.97 (2015 rule).
    \333\ For example, OFCCP has incorporated similar language into 
its conciliation agreements pursuant to its regulations at 41 CFR 
60-1.34(d).
---------------------------------------------------------------------------

    Comment: A State agency commented that Sec.  38.93(g) would allow 
CRC to publish conciliation agreements in the media as leverage against 
the State. The commenter argued that CRC should only be allowed to 
publish the agreement after all negotiating has been completed and the 
parties have signed the conciliation agreement.
    Response: CRC does not publish conciliation agreements that have 
not been fully negotiated and executed. The purpose of Sec.  38.93(g) 
is to ensure that all parties to the agreement understand that the 
agreement may be made public. For the reasons set forth above and in 
the NPRM and considering the comments received, CRC finalizes proposed 
Sec.  38.93 without modification.
When Voluntary Compliance Cannot Be Secured Sec.  38.94
    In proposed Sec.  38.94, we retained the language in the 1999 and 
2015 rules,\334\ but updated its section number and revised its title. 
The only change to this section was adding ``the Governor'' to the list 
of other entities in paragraphs (a) and (b)(1), because the Governor 
may also be a recipient in violation of this part. We received one 
comment on proposed Sec.  38.94.
---------------------------------------------------------------------------

    \334\ 29 CFR 37.98 (1999 rule); 29 CFR 38.98 (2015 rule).
---------------------------------------------------------------------------

    Comment: A State agency commented that neither WIOA nor Title VI 
support the new authority that CRC seeks to assert over State 
Governors. The commenter suggested that the word ``Governor'' be 
removed from paragraphs (a) and (b)(1) in Sec.  38.94.
    Response: CRC disagrees. The Governors assume the obligations under 
Section 188 when they accept WIOA funds. Moreover, as mentioned 
earlier,

[[Page 87197]]

CRC has the requisite authority to enforce the nondiscrimination and 
equal opportunity provisions of Section 188 of WIOA and this part as 
applied to Governors. As contemplated in subparts B and C, the Governor 
serves a unique role, sometimes serving as both the entity responsible 
for oversight and monitoring of all State Programs and as a recipient, 
and violations may occur in either role under Section 188.
    For the reasons set forth above and in the NPRM and considering the 
comments received, CRC finalizes Sec.  38.94 as proposed, with a 
grammatical correction to paragraph (b)(1) to change ``be'' to 
``been.''
Enforcement When Voluntary Compliance Cannot Be Secured Sec.  38.95, 
Contents of a Final Determination of a Violation Sec.  38.96, and 
Notification of Finding of Noncompliance Sec.  38.97
    Proposed Sec. Sec.  38.95, 38.96, and 38.97 retained all of the 
existing language in the 2015 rule's Sec. Sec.  38.99, 38.100, and 
38.101, and only updated their titles and section numbers. CRC received 
no comments on these sections and adopts Sec. Sec.  38.95, 38.96, and 
38.97 as proposed.
Notification of Breach of Conciliation Agreement Sec.  38.98
    Proposed Sec.  38.98 merged the 2015 rule's Sec. Sec.  38.102 and 
38.103 into one section. CRC received no comments on this provision and 
adopts Sec.  38.98 as proposed, with a technical correction to the 
title of the section to match the term used in the text.
Contents of Notification of Breach of Conciliation Agreement Sec.  
38.99 and Notification of an Enforcement Action Based on Breach of 
Conciliation Agreement Sec.  38.100
    Proposed Sec. Sec.  38.99 and 38.100 retained all of the existing 
language in the 2015 rule's Sec. Sec.  38.104 and 38.105, and only 
updated their titles and section numbers. CRC received no comments on 
these sections and adopts Sec. Sec.  38.99 and 38.100 as proposed, with 
a technical correction to the title of Sec.  38.99 to match the term 
used in the text.

Subpart E--Federal Procedures for Effecting Compliance

Enforcement Procedures Sec.  38.110
    Proposed Sec.  38.110 generally retained the language in the 1999 
and 2015 rules and made one additional update, adding language at the 
end of paragraph (a)(3) stating that the Secretary may take such action 
as may be provided by law ``which may include seeking injunctive 
relief.'' We added this provision to advise recipients that the 
Secretary may seek corrective actions that go beyond make-whole relief, 
and provided injunctive relief as an example of such other actions.
    Comment: Two individual commenters supported the proposal but 
questioned how it would be enforced.
    Response: CRC is committed to enforcing the equal opportunity and 
nondiscrimination provisions of WIOA Section 188 and this part using 
the detailed enforcement procedures set forth in the final rule.
    For the reasons set forth above and in the NPRM, and in 
consideration of the comments received, CRC finalizes proposed Sec.  
38.110 without modification.
Hearing Procedures Sec.  38.111
    Proposed Sec.  38.111 retained the same requirements of the 1999 
and 2015 rules, but made minor changes to their provisions. Proposed 
Sec.  38.111(b)(3) only updated the current title and location of the 
Office of the Solicitor's Division with which grant applicants or 
recipients must serve a copy of their filings under this section. 
Proposed Sec.  38.111(d)(2) deleted the word ``Uniform'' as used in the 
2015 rule's Sec.  38.111 (d)(2), ``Uniform Rules of Evidence issued by 
the Department of Labor's Office of Administrative Law Judges'' to 
reflect the current title of that rule at 29 CFR part 18.
    CRC received no comments on this provision and adopts Sec.  38.111 
as proposed.
Initial and Final Decision Procedures Sec.  38.112
    Proposed Sec.  38.112 generally contained the same requirements as 
the 1999 and 2015 rules, but made a few modifications to its 
provisions. This proposed section replaced the word ``Secretary'' with 
the phrase ``Administrative Review Board'' (ARB) as it appears in 
various parts of Sec.  38.112(b)(1) and (2). This replacement 
accurately reflects the ARB's role in issuing final agency decisions in 
cases brought to enforce WIOA Section 188. As stated in the NPRM, the 
Secretary's Order 2-96, issued in 1996, created the ARB and delegated 
to the ARB the Secretary's authority to issue final agency decisions 
under 38 enumerated statues, including the Comprehensive Employment and 
Training Act, 29 U.S.C. 801 et seq., and the Job Training Partnership 
Act, 20 U.S.C. 1576, predecessor statutes to WIA and WIOA. 
Additionally, Secretary's Order 1-2002 included a delegation to the ARB 
for matters arising under Section 188 of the Workforce Investment 
Act,\335\ as did Secretary's Order 02-2012.\336\ These delegation 
orders also contain a catch-all provision to extend the delegation to 
subsequently enacted statues or rules, including: ``Any laws or 
regulations subsequently enacted or promulgated that provide for final 
decisions by the Secretary of Labor upon appeal or review of decisions, 
or recommended Decisions, issued by ALJs.'' \337\ Thus, absent a new 
delegation order, the ARB issues final agency decisions under Section 
188 of WIOA.
---------------------------------------------------------------------------

    \335\ 67 FR 64272, Oct. 17, 2002.
    \336\ 77 FR 69376, Nov.16, 2012.
    \337\ Id. at 63279.
---------------------------------------------------------------------------

    Proposed paragraph (b) retained the procedures for filing 
exceptions to the Administrative Law Judge's initial decision and order 
and issuance of a Final Decision and Order by the Department, but 
included some modifications. Specifically, proposed paragraph 
(b)(1)(iii) deleted the sentence ``[a]ny exception not specifically 
urged is waived'' from this paragraph. The prior provisions did not 
accurately describe the ARB's scope of review of initial decisions 
under the Administrative Procedure Act (APA). The APA provides that, on 
appeal from or review of the initial decision, the agency has all the 
power which it would have in making the initial decision except as it 
may limit the issues on notice or by rule.\338\ Where, as here, the 
applicable rule does not specify the standard of review, ``the Board is 
not bound by either the ALJ's findings of fact or conclusions of law, 
but reviews both de novo.'' \339\
---------------------------------------------------------------------------

    \338\ 5 U.S.C. 557(b).
    \339\ Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1, 
at 7 (ARB Apr. 25, 2000) (citations omitted). See also Jones v. U.S. 
Dep't of Labor, 148 F.App'x 490, 2005 WL 2173769 (6th Cir Sept. 8, 
2005) (ARB acted within its authority in drawing its own conclusions 
based on its independent review of the evidence); Phillips v. 
Stanley Smith Sec., Inc., ARB No. 98-020, ALJ No. 1996-ERA-30 (ARB 
Jan. 31, 2001) (ARB reviews ALJ decisions under the ERA de novo but 
accords special weight to an ALJ's demeanor-based credibility 
determinations); Berkman v. U.S. Coast Guard Acad., ARB No. 98-056, 
ALJ No. 1997-CAA-2, at 9 (ARB Feb. 29, 2000).
---------------------------------------------------------------------------

    Finally, as noted in the preamble to the NPRM, we retained all of 
the 1999 and 2015 rules' requirements in proposed paragraph (b)(2)(ii), 
and proposed adding ``the Governor'' as one of the listed entities to 
which this provision applied. Proposed Sec.  38.112(b)(2)(ii) stated 
that, when a Final Determination or Notification of a Breach of 
Conciliation Agreement becomes the Final Decision, the ARB may, within 
45 days, issue an order terminating or denying the grant or 
continuation of assistance or imposing appropriate sanctions for 
failure of the grant applicant or recipient to comply

[[Page 87198]]

with the required corrective and/or remedial actions. We announced in 
the preamble to the NPRM that the imposition of appropriate sanctions 
should also be applicable to Governors for their failure to comply. The 
regulatory text of the NPRM inadvertently did not insert the Governor 
into the list of other entities--grant applicants and recipients--to 
which these provisions apply. However, we have corrected that oversight 
in this final rule. We received one comment regarding this revision.
    Comment: A State agency commented that neither WIOA nor Title VI 
support the new authority that the Department seeks to assert over 
State Governors. The commenter suggested that the word ``Governor'' be 
removed from Sec.  38.112.
    Response: For the reasons provided above, CRC has the requisite 
authority to enforce the nondiscrimination and equal opportunity 
provisions of Section 188 of WIOA and this part as applied to 
Governors. As contemplated in subparts B and C, the Governor serves a 
unique role, sometimes serving as both the one responsible for 
oversight and monitoring of all State Programs and as a recipient. 
Again, the Governor may be found in violation under Section 188 and 
this part in either role. Thus, we decline to adopt the commenter's 
suggestion to exclude the Governor from this provision.
    For the reasons stated in the proposed rule and considering the 
comments received, CRC finalizes Sec.  38.112 as proposed, with the 
following modifications: Adding ``Governor's'' to paragraph (b)(2)(ii) 
and changing ``applicant'' to ``applicant's'' in the same paragraph for 
the sake of grammatical correctness and consistency.
Suspension, Termination, Withholding, Denial, or Discontinuation of 
Financial Assistance Sec.  38.113
    Proposed Sec.  38.113 generally retained the language in this 
section and revised its title. The proposed rule included a small 
technical update in paragraph (c) and replaced the term ``Secretary'' 
with ``Administrative Review Board,'' consistent with the reason set 
forth in Sec.  38.112. CRC received no comments on this provision and 
adopts Sec.  38.113 as proposed.
Distribution of WIOA Title I Financial Assistance to an Alternate 
Recipient Sec.  38.114
    Proposed Sec.  38.114 retained the language in this section and 
changed its title. CRC received no comments on this provision and 
adopts Sec.  38.114 as proposed.
Post-Termination Proceedings Sec.  38.115
    Proposed Sec.  38.115 retained the language in this section and 
changed its title. CRC received no comments on this provision and 
adopts Sec.  38.115 as proposed.

III. Rulemaking Analyses and Notices

A. Executive Orders 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory Review)

    Executive Order (E.O.) 12866 directs agencies, in deciding whether 
and how to regulate, to assess all costs and benefits of available 
regulatory alternatives, including the alternative of not regulating. 
E.O. 13563 is supplemental to and reaffirms E.O. 12866. It emphasizes 
the importance of quantifying present and future benefits and costs; 
directs that regulations be adopted with public participation; and, 
where relevant and feasible, directs that regulatory approaches be 
considered that reduce burdens, harmonize rules across agencies, and 
maintain flexibility and freedom of choice for the public. Costs and 
benefits shall be understood to include both quantifiable measures and 
qualitative assessments of possible impacts that are difficult to 
quantify. If regulation is necessary, agencies should select regulatory 
approaches that maximize net benefits. The Office of Management and 
Budget (OMB) determines whether a regulatory action is significant and, 
therefore, subject to review.
    Section 3(f) of E.O. 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 E.O. 12866.
    Summary of the analysis. The Department provides the following 
summary of the regulatory impact analysis:
    (1) This final rule is a ``significant regulatory action'' under 
Section 3(f)(4) of E.O. 12866; therefore, OMB has reviewed this final 
rule.
    (2) This final rule would have a negligible net direct cost impact 
on small entities beyond the baseline of the current costs required by 
the Workforce Innovation and Opportunity Act (WIOA) program as it is 
currently implemented in regulation.
    (3) This final rule would not impose an unfunded mandate on 
Federal, state, local, or tribal governments as defined by the Unfunded 
Mandates Reform Act.
    The total undiscounted cost of this final rule is estimated to be 
$120.0 million over the 10-year analysis period, which is equivalent to 
$106.86 million at a discount rate of 3 percent or $93.1 million at a 
discount rate of 7 percent. The Department estimates that this final 
rule will have an undiscounted first-year cost of $21.0 million, 
second-year cost of $10.2 million, and third-year cost of $13.8 
million. In the fourth through the tenth years, average annual costs 
will be $10.7 million. The annualized cost of the proposed rule is 
estimated to be $12.2 million at a discount rate of 3 percent or $12.4 
million at a discount rate of 7 percent. The annual burden hours are 
detailed in Table 3 and Table 4 presents a summary of the costs of this 
final rule. This final rule will not create significant new costs for 
Governors, recipients, or beneficiaries.
    The primary cost burden created for affected entities by this final 
rule will be the cost of Governors' oversight and monitoring 
responsibilities for State Programs. Over the 10-year analysis 
timeframe, the Department estimates this provision to cost $57.3 
million (undiscounted). The next two provisions with the highest costs 
over the 10-year analysis are the recipients' obligation to publish the 
equal opportunity notice ($31.2 million) and the required elements of a 
recipient's complaint procedures ($12.7 million). All provisions are 
discussed in the subject-by-subject analysis.
    The Department was unable to quantify the benefits of this final 
rule due to data limitations or lack of existing data or evaluation 
findings. Many of the revisions to 29 CFR part 38 contained in this 
final rule, however, will improve readability and provide additional 
guidance to Governors, other recipients, and beneficiaries, in several 
instances in response to feedback from stakeholders, to their benefit. 
For example, additional clarifying language in Sec. Sec.  38.28-38.31 
regarding the obligations of Equal Opportunity Officers (EO Officers) 
and recipients' obligations regarding their EO Officers provides 
detailed direction that benefits recipients by providing better

[[Page 87199]]

programmatic guidance. Similarly, Sec.  38.92 provides detail regarding 
the use of written assurances in the enforcement of nondiscrimination 
and equal opportunity requirements that resolves confusion that 
recipients raised about their use.
    In addition, by including updates to the nondiscrimination 
provisions in Subpart A, this final rule makes it easier for Governors 
and recipients to meet their equal opportunity and nondiscrimination 
obligations under Section 188 of WIOA because the implementing 
regulations contain provisions consistent with requirements with which 
they are already required to comply under Federal laws such as Title VI 
and Title VII of the Civil Rights Act of 1964, as amended; Title IX of 
the Education Amendments of 1972; the Americans with Disabilities Act 
of 1990, as amended; and Section 504 of the Rehabilitation Act.
1. The Need for the Regulation
    Signed by President Obama on July 22, 2014, WIOA supersedes the 
Workforce Investment Act of 1998 (WIA) as the Department's primary 
mechanism for providing financial assistance for a comprehensive system 
of job training and placement services for adults and eligible youth. 
Section 188 of WIOA prohibits the exclusion of an individual from 
participation in, denial of the benefits of, discrimination in, 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, or political 
affiliation or belief, or, for beneficiaries, applicants, and 
participants only, because of citizenship status, or participation in a 
program or activity that receives financial assistance under Title I of 
WIOA. Section 188(e) of WIOA requires that the Department issue 
regulations implementing Section 188. WIOA contains identical 
provisions of Section 188 as appeared in WIA.
2. Technical Update of Section 188 Versus Publication of a Simultaneous 
Final Rule
    The Department considered two possible alternatives: (1) To publish 
a final rule as 29 CFR part 38 implementing Section 188 of WIOA with 
only technical updates to the regulations at 29 CFR 37, which 
implemented Section 188 of WIA; or (2) To do (1) and publish an 
additional final rule that updates part 38 consistent with current law 
and addresses its application to current workforce development and 
workplace practices and issues.
    The Department considered these options in accordance with the 
provisions of E.O. 12866 and chose to publish in July 2015 a 
technically updated final rule implementing Section 188 of WIOA, as 
required, and additionally publish this final rule consistent with 
current nondiscrimination law that addresses its application to current 
workforce development and workplace practices and issues (i.e., 
alternative (2)). The Department concluded that the 2015 rule, which 
only technically updated the 1999 rule, did not reflect recent 
developments in equal opportunity and nondiscrimination jurisprudence. 
Moreover, procedures and processes for enforcement of the 
nondiscrimination and equal opportunity provisions of 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, benefits, services, and training through WIOA 
Title I financially assisted programs and activities. Thus, only 
reissuing the existing regulations with technical updates (i.e., 
alternative (1)) would have the negative effect of continuing to impose 
ongoing compliance costs on recipients while not providing the full 
protections to which beneficiaries are entitled under current law.
3. Analysis Considerations
    The Department derived its estimates by comparing the existing 
program baseline, that is, the program benefits and costs of the 1999 
and 2015 rules to the benefits and costs of the final rule.\340\ For a 
proper evaluation of the benefits and costs of this final rule, the 
Department has explained how the newly required actions by States and 
recipients under the regulations at part 38 are linked to the expected 
benefits and estimated costs.
---------------------------------------------------------------------------

    \340\ As previously noted, the 2015 rule (the original 
regulations implementing Section 188 of WIOA at 29 CFR part 38) made 
no substantive changes to the 1999 rule (the regulations 
implementing Section 188 of WIA at 29 CFR part 37).
---------------------------------------------------------------------------

    The Department made every effort, when feasible, to quantify and 
monetize the benefits and costs of this final rule. When the Department 
was unable to quantify them--for example, due to data limitations--the 
Department described the benefits and costs qualitatively. In 
accordance with the regulatory analysis guidance contained in OMB 
Circular A-4 and consistent with the Department's practices in previous 
rulemakings, this regulatory analysis focuses on the benefits and costs 
that accrue to citizens and residents of the United States associated 
with this final rule.
    Table 1 presents the estimated annual number of recipients expected 
to experience an increase in level of effort (workload) due to this 
final rule. These estimates are used extensively throughout this 
document to estimate the costs of each provision. Note that several 
recipients are counted under multiple categories because they receive 
more than one source of WIOA Title I financial assistance, that is, 
they receive funds under multiple programs. For example, the Texas 
Workforce Commission is both a recipient of a Senior Community Service 
Employment Program Grant and an Adult WIOA Title I grantee. However, 
the Department included it in both categories in an effort to be 
overinclusive, rather than risking underestimating the costs of this 
final rule.

[[Page 87200]]



     Table 1--Estimated Annual Number of Recipients, Beneficiaries, and Non-Federal, Full-Time Employees of
                                                   Recipients
----------------------------------------------------------------------------------------------------------------
                                                                                                    Non-federal
                                                                                                     full-time
                                                                    Recipients     Beneficiaries   employees of
                                                                                                    recipients
----------------------------------------------------------------------------------------------------------------
States \341\....................................................        \342\ 57  ..............  ..............
    Adult Program (Title I of WIOA).............................         (\345\)  ..............    \343\ 65,655
    Dislocated Worker Program (Title I of WIOA).................         (\345\)  ..............         (\346\)
    Youth Program (Title I of WIOA).............................         (\345\)   \344\ 193,130         (\346\)
    Wagner-Peyser Act Program (Wagner-Peyser Act, as amended by          (\345\)           \345\         (\346\)
     Title III of WIOA).........................................                      16,619,943
    Adult Education and Literacy Program (Title II of WIOA).....         (\345\)           \346\    \347\ 67,293
                                                                                       2,012,163
    Vocational Rehabilitation Program...........................         (\345\)   \348\ 573,086    \349\ 68,000
    Trade Adjustment Assistance Program.........................         (\345\)    \350\ 51,133         (\346\)
    Unemployment Compensation Program...........................         (\345\)           \351\    \352\ 62,138
                                                                                       2,451,464
    Local Veterans' Employment Representatives and Disabled              (\345\)   \353\ 450,843     \354\ 2,700
     Veterans' Outreach Program.................................
    Career and Technical Education (Perkins)....................         (\345\)           \355\         (\346\)
                                                                                      12,052,217
    Community Service Block Grants..............................         (\345\)           \356\         (\346\)
                                                                                      16,000,000
    Temporary Assistance for Needy Families (TANF)..............         (\345\)           \357\         (\346\)
                                                                                       4,417,000
    State and Local Workforce Development Boards................       \358\ 580  ..............     \359\ 9,280
    Service Providers, Including Eligible Training Providers and    \361\ 11,400   \362\ 122,693   \363\ 439,936
     On-the-Job Training Employers \360\........................
    One-Stop Career Centers \364\...............................     \365\ 2,481   \366\ 864,936     \367\ 2,481
National Programs Include:
    Job Corps Operators (i.e., national contractors)............        \368\ 18       \369 370\       \371 372\
                                                                                         109,523           3,050
    Job Corps Outreach and Admissions Operators.................        \373\ 24         (\374\)         (\376\)
    Job Corps National Training Contractors/Career Transition           \374\ 21         (\374\)         (\376\)
     Services Operators.........................................
    Senior Community Service Employment Grants..................        \375\ 71    \376\ 67,123         (\346\)
    National Emergency Grants \377\.............................       \378\ 125    \379\ 26,221     \380\ 9,280
    Reintegration of Ex-Offenders--Adult Grants \381\...........        \382\ 28     \383\ 6,800       \384\ 555
    H-1B Technical Skills Training Grants \385\.................        \386\ 36    \387\ 22,543       \388\ 774
    H-1B Jobs and Innovation Accelerator Challenge Grants \389\.        \390\ 30     \391\ 3,500       \392\ 183
    Indian and Native American Programs.........................       \393\ 178    \394\ 35,735       \395\ 994
    National Farmworker Jobs Program............................        \396\ 69    \397\ 41,300    \398\ 60,965
    YouthBuild..................................................        \399\ 82    \400\ 36,997     \401\ 2,408
    Registered Apprenticeship Program...........................    \402\ 19,259   \403\ 197,500    \404\ 85,317
                                                                 -----------------------------------------------
        Total...................................................          34,459      56,355,850         881,009
----------------------------------------------------------------------------------------------------------------

    Table 2 presents the compensation rates for the occupational 
categories expected to experience an increase in level of effort 
(workload) due to this final rule. The Department used median hourly 
wage rates from the Bureau of Labor Statistics (BLS) Occupational 
Employment Statistics (OES) program for private, State, and local 
employees \405\ as well as the federal

[[Page 87201]]

minimum wage. The Department adjusted the wage rates using a loaded 
wage factor to reflect total compensation, which includes health and 
retirement benefits. For these State and local sectors, the Department 
used a loaded wage factor of 1.57, which represents the ratio of 
average total compensation to average wages in 2015.\406\ The 
Department multiplied the loaded wage factor by each occupational 
category's median wage rate to calculate an hourly compensation rate. 
The Department used the hourly compensation rates presented in Table 2 
extensively throughout this document to estimate the labor costs of 
each provision. The Department assumes that beneficiaries would be paid 
at least the federal minimum wage and therefore, we used the Federal 
minimum wage rate to calculate the estimated costs to beneficiaries 
throughout this analysis.\407\ However, the Department did not multiply 
the loaded wage factor by the federal minimum wage to calculate an 
hourly compensation rate for beneficiaries because they are not 
considered to be employed.
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    \341\ The 57 state entities are the recipients for the twelve 
programs below.
    \342\ This number includes the 50 states as well as the District 
of Columbia, American Samoa, Guam, Northern Mariana Islands, Puerto 
Rico, Palau, and U.S. Virgin Islands. These 57 entities are the 
recipients for the following programs and are thus counted only 
once: 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 Program, Unemployment 
Compensation Program, Local Veterans' Employment Representatives and 
Disabled Veterans' Outreach Program, Career and Technical Education 
(Perkins), Community Service Block Grants, and Temporary Assistance 
for Needy Families (TANF).
    \343\ This number is an estimate based on the average number of 
employees at State-level Department of Labor equivalents. These same 
65,655 employees account for the non-federal full-time employees in 
the following programs and are thus counted only once: Adult Program 
(Title I of WIOA), Dislocated Worker Program (Title I of WIOA), 
Wagner-Peyser Act Program (Wagner Peyser Act, as amended by Title 
III of WIOA), Trade Adjustment Assistance Program, Career and 
Technical Education (Perkins), Community Service Block Grants, 
Temporary Assistance for Needy Families (TANF), and Senior Community 
Service Employment Grants.
    \344\ U.S. Department of Labor, Employment and Training 
Administration, Workforce System Results: For the Quarter ending 
June 30, 2015, https://www.doleta.gov/performance/results/pdf/DOL_Workforce_Rprt_JUN_2015.pdf. (hereinafter ``Workforce 
SystemResults'').
    \345\ U.S. Department of Labor, Employment and Training 
Administration, National--Wagner-Peyser: Program Year 2013, http://www.doleta.gov/performance/results/pdf/WagnerPeyserPY2013.pdf.
    \346\ U.S. Department of Education, Office of Vocational and 
Adult Education, Adult Education and Family Literacy Act of 1998: 
Annual Report to Congress Program Year 2010-2011 (May 2013), http://www2.ed.gov/about/offices/list/ovae/resource/aefla-report-to-congress-2010.pdf.
    \347\ National Reporting System, Adult Education Personnel, 
http://www.nrsweb.org/docs/NRS_Fast_Facts_508_rev.pdf.
    \348\ U.S. Department of Education, Office of Special Education 
and Rehabilitative Services, Annual Report Fiscal Year 2012 (2014), 
http://www2.ed.gov/about/reports/annual/rsa/2012/rsa-2012-annual-report.pdf.
    \349\ This is an estimate based on the average number of 
employees at state-level Department of Labor equivalents.
    \350\ Workforce System Results, supra note 344, at 3.
    \351\ Id.
    \352\ This is an estimate based on the average number of 
employees at state-level Department of Labor equivalents.
    \353\ U.S. Department of Labor, Veterans' Employment & Training 
Service, Annual Report to Congress: Fiscal Year 2013, http://www.dol.gov/vets/media/DOL-VETS-FY2013_ANNUAL_REPORT-OMB-CLEARED_10-16-14.pdf. This number is for PY 2012. Id.
    \354\ U.S. Department of Veterans Affairs, LVER and DVOP Fact 
Sheet, http://www.benefits.va.gov/VOW/docs/LVER_DVOP_Factsheet.pdf.
    \355\ U.S. Department of Education, Carl D. Perkins Career and 
Technical Education Act of 2006: Report to Congress on state 
Performance Program Year 2010-2011, 2014, https://s3.amazonaws.com/PCRN/docs/Rpt_to_Congress/Perkins_RTC_2010-11.pdf.
    \356\ U.S. Department of Health and Human Services, 
Administration for Children & Families, Fiscal Year 2015: 
Justification of Estimates for Appropriations Committees, https://www.acf.hhs.gov/sites/default/files/olab/fy_2015_congressional_budget_justification.pdf.
    \357\ U.S. Department of Health and Human Services, Welfare 
Indicators and Risk Factors: Thirteenth Report to Congress (March 
2014), http://aspe.hhs.gov/hsp/14/indicators/rpt_indicators.pdf.
    \358\ From the burden analysis contained in the ETA WIOA Final 
Rule, supra note 309.
    \359\ This number is an estimate based on the average number of 
full-time employees from fourteen local boards multiplied by the 
number of recipients. The fourteen local boards include three from 
North Carolina, three from West Virginia, one from Virginia, three 
from Washington, three from Wisconsin, and one from Illinois.
    \360\ U.S. Department of Labor, Employment and Training 
Administration, PY 2012 WIA Trends Over Time (December 2013), http://www.doleta.gov/performance/results/pdf/PY2012WIATrends.pdf. 
(hereinafter ``WIA Trends over Time'').
    \361\ From the burden analysis contained in the ETA WIOA Final 
Rule, supra note 309.
    \362\ WIA Trends over Time, supra note 360, at 26.
    \363\ This number is an estimate based on the average number of 
employees at five different community colleges multiplied by 57 (the 
50 states, the District of Columbia, and American Samoa, Guam, 
Northern Mariana Islands, Puerto Rico, Palau, and U.S. Virgin 
Islands). One college each came from the following states: Alabama, 
North Carolina, Virginia, Kentucky, and Colorado.
    \364\ WIA Trends over Time, supra note 360, at 26.
    \365\ From the burden analysis contained in the ETA WIOA Final 
Rule, supra note 309.
    \366\ WIA Trends over Time, supra note 360, at 26.
    \367\ This is an estimate based on the assumption that there is 
usually one point of contact per one-stop. U.S. Department of Labor, 
Employment and Training Administration, Regional, State, and Local 
Contacts (updated February 2016), http://wdr.doleta.gov/contacts/.
    \368\ U.S. Department of Labor, Job Corps, PY 08: U.S. 
Department of Labor Job Corps Annual Report, http://www.jobcorps.gov/Libraries/pdf/py08report.sflb (hereinafter ``PY 
08'').
    \369\ Workforce System Results, supra note 344, at 3.
    \370\ Job Corps Operators, Job Corps Outreach and Admissions 
Operators, and Job Corps national training contractors/Career 
Transition Services Operators serve the same beneficiaries, so they 
are only counted once.
    \371\ This number is an estimate based on the assumption that 
there twenty-five employees at each of the Job Corps centers.
    \372\ Job Corps Operators, Job Corps Outreach and Admissions 
Operators, and Job Corps national training contractors/Career 
Transition Services Operators utilize the same employees, so they 
are only counted once.
    \373\ PY 08, supra note 368, at 13.
    \374\ PY 08, supra note 368, at 13.
    \375\ U.S. Department of Labor, Employment and Training 
Administration, Senior Community Service Employment Program (updated 
March 2016), http://www.doleta.gov/seniors/.
    \376\ Workforce System Results, supra note 344, at 3.
    \377\ WIA Trends over Time, supra note 360, at 26.
    \378\ This number was calculated based on the total active 
National Emergency Grant Awards by state (as of August 2014) 
obtained from the Workforce Investment Act Standardized Record Data 
(WIASRD) system by the Employment and Training Administration of the 
U.S. Department of Labor.
    \379\ WIA Trends over Time, supra note 360, at 26.
    \380\ This number is an estimate based on the average number of 
full-time employees from fourteen boards. The fourteen boards 
include three from North Carolina, three from West Virginia, one 
from Virginia, three from Washington, three from Wisconsin, and one 
from Illinois.
    \381\ U.S. Department of Labor, Employment and Training 
Administration, Notice of Availability of Funds and Solicitation for 
Grant Applications for Reintegration of Ex-Offenders (RExO) Adult 
Generation 5 (January 2012), http://www.doleta.gov/grants/pdf/sga_dfa_py_11_02_final_1_11_2012.pdf (hereinafter ``PY 2011'').
    \382\ U.S. Department of Labor, Employment and Training 
Administration, Reentry Employment Opportunities (REO) (updated 
April 2015), http://www.doleta.gov/REO/trainingtowork_grantees.cfm.
    \383\ PY 2011, supra note 381, at 6.
    \384\ This number is an estimate based on the average number of 
full-time employees at grantee organizations (17) multiplied by the 
average number of full-time employees at 11 Training to Work 2 
grantees (32.64).
    \385\ U.S. Department of Labor, Employment and Training 
Administration, Overview of the H-1B Technical Skills Training (TST) 
Grants (May 2012), http://www.doleta.gov/business/pdf/H-1B_TST_R1-R2_Grant_Summaries_Final.pdf.
    \386\ U.S. Department of Labor, Employment and Training 
Administration, Overview of the H-1B Technical Skills Training (TST) 
Grants (May 2012), http://www.doleta.gov/business/pdf/H-1B_TST_R1-R2_Grant_Summaries_Final.pdf. This is the most recent data available 
and assumes no variation from year to year of total national 
programs, although the names of the individual grant programs may 
shift from year to year. Similar grant activities continue from year 
to year, even if they are not these same grants.
    \387\ Id. This number is an estimate based on the total number 
of each grantee's projections.
    \388\ This number is an estimate based on the average number of 
full-time employees at six grantees (21.5) multiplied by the number 
of recipients (36).
    \389\ Mathematica Policy Research, Evaluation of the Jobs and 
Innovation Accelerator Challenge Grants: Interim Findings on 
Multiagency Collaboration and Cluster Process (August 2015), https://www.mathematica-mpr.com/our-publications-and-findings/publications/evaluation-of-the-jobs-and-innovation-accelerator-challenge-grants-interim-findings-on-multiagency (hereinafter ``Mathematica JIAC'').
    \390\ U.S. Department of Labor Employment and Training 
Administration, Overview of the H-1B Jobs and Innovation Accelerator 
Challenge (Jobs Accelerator) Grants, http://www.doleta.gov/business/pdf/H-1B_Jobs_Accelerator_R1-R2_Project_Summaries_FINAL.pdf.
    \391\ Mathematica JIAC, supra note 389, at x.
    \392\ This number is an estimate based on the average number of 
full-time employees at six grantees.
    \393\ U.S. Department of Labor, Employment and Training 
Administration, FY 2015 Congressional Budget Justification, http://www.dol.gov/dol/budget/2015/PDF/CBJ-2015-V1-04.pdf.
    \394\ Workforce System Results, supra note 344, at 3. This 
number was derived from adding the number of beneficiaries of the 
Indian and Native American Adult Program and the program for Indian 
and Native American Youth.
    \395\ This number is an estimate based on the assumption that 
American Indian and Alaskan Natives make up 1.6 percent of the total 
number of non-Federal full-time employees as with the total 
population.
    \396\ U.S. Department of Labor, Employment and Training 
Administration, National Farmworker Jobs Program (updated February 
2016), http://www.doleta.gov/Farmworker/html/NFJP_factsheet.cfm.
    \397\ Workforce System Results, supra note 344, at 3.
    \398\ This number is an estimate based on the average number of 
full-time employees at state-level Department of Labor equivalents 
multiplied by the number of grantees.
    \399\ U.S. Department of Labor, Employment and Training 
Administration, FY 2016 Department of Labor Budget in Brief, http://www.dol.gov/dol/budget/2016/PDF/FY2016BIB.pdf.
    \400\ Workforce System Results, supra note 344, at 3.
    \401\ This number is based on the average number of employees at 
twenty-three grantees multiplied by the number of grantees.
    \402\ This number was provided by the Apprenticeship Program 
Office at the Department of Labor.
    \403\ U.S. Department of Labor, Employment and Training 
Administration, Registered Apprenticeship National Results: Fiscal 
Year 2015 (updated December 2016), http://doleta.gov/oa/data_statistics.cfm. In FY 2015, more than 197,500 individuals 
nationwide entered the apprenticeship system. We estimate in FY 
2015, 7.1 percent (14,023 active female apprentices/197,500 total 
active apprentices in the Registered Apprenticeship Partners 
Information Management Data System (RAPIDS) database) of active 
apprentices were women.
    \404\ U.S. Census Bureau, Statistics about Business Size 
(including Small Business) from the U.S. Census Bureau (updated 
August 2015), http://www.census.gov/econ/smallbus.html. This number 
is an estimate based on the average number of paid employees per 
firm (4.43) multiplied by the number of recipients.
    \405\ Department of Labor, Bureau of Labor Statistics, May 2015 
National Occupational Employment and Wage Estimates (updated March 
2016), http://www.bls.gov/oes/current/oes_nat.htm.
    \406\ Discerning the number of State and local-sector employees 
and private-sector employees at the local level is difficult; 
therefore, the Department used the State and local-sector loaded 
wage factor (1.57) instead of the private-sector wage factor (1.43) 
for all the employees to avoid underestimating the costs. For the 
State and local multiplier see Department of Labor, Bureau of Labor 
Statistics, Employer Cost and Employee Compensation (June 2016), 
http://www.bls.gov/news.release/ecec.nr0.htm.
    \407\ The cost to beneficiaries may be underestimated because 
some of beneficiaries are in the States that have a higher State 
minimum wage than the federal minimum wage.
---------------------------------------------------------------------------

    The Department assumes Equal Opportunity Officers are managers as a 
proxy for their specific wage rates. This

[[Page 87202]]

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

    \408\ See Sec. Sec.  38.28-38.31.

                                       Table 2--Hourly Compensation Rates
                                                 [2015 Dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                                      Hourly
                            Position                              Median  hourly   Loaded  wage    compensation
                                                                        wage          factor           rate
                                                                               A               B       C = A x B
----------------------------------------------------------------------------------------------------------------
Managers \409\..................................................          $46.99            1.57          $73.77
Computer Programmers \410\......................................           38.24  ..............           60.04
Beneficiaries \411\.............................................            7.25  ..............            7.25
----------------------------------------------------------------------------------------------------------------

4. Subject-by-Subject Benefit-Cost Analysis
---------------------------------------------------------------------------

    \409\ U.S. Department of Labor, Bureau of Labor Statistics, 
Occupational Employment Statistics (May 2015), 11-1021 General and 
Operations Managers, http://www.bls.gov/oes/current/oes111021.htm.
    \410\ U.S. Department of Labor, Bureau of Labor Statistics, 
Occupational Employment Statistics (May 2015), 15-1131 Computer 
Programmers, http://www.bls.gov/oes/current/oes151131.htm.
    \411\ This is the current federal minimum wage. 29 U.S.C. 
206(a)(1)(C).
---------------------------------------------------------------------------

    The Department derives its estimates below by comparing the 
existing program baseline, that is, the program benefits and costs 
estimated as a part of the 1999 and 2015 rules to the new requirements 
of the final rule.\412\ Calculated cost estimates may not replicate or 
sum due to rounding.
---------------------------------------------------------------------------

    \412\ As previously noted, the 2015 rule (the original 
regulations implementing Section 188 of WIOA at 29 CFR part 38) made 
no substantive changes to the 1999 rule (the regulations 
implementing Section 188 of WIA at 29 CFR part 37).
---------------------------------------------------------------------------

    The Department emphasizes that many of this final rule provisions 
are also existing requirements under WIOA. For example, 29 CFR 38.5 
prohibits recipients from excluding an individual from participation 
in, denial of the benefits of, discrimination in or denial of 
employment in the administration of or in connection with, any WIOA 
Title I financially assisted program or activity on the ground of race, 
color, religion, sex, national origin, age, disability, political 
affiliation or belief, and for beneficiaries only, citizenship status 
or participation in any WIOA Title I-financially assisted program or 
activity. This final rule retains these requirements, but revises the 
language to make it easier to read, and also provides separate sections 
in the rule defining discrimination based on national origin, sex, 
pregnancy and citizenship status to aid recipients in meeting their 
obligations.\413\ Accordingly, this regulatory analysis focuses on 
``new'' costs that can be attributed to revisions of existing 
obligations and new requirements contained in this final rule.
---------------------------------------------------------------------------

    \413\ See Sec. Sec.  38.9, 38.7, and 38.11.
---------------------------------------------------------------------------

Discussion of Impacts
    In this section, the Department presents the costs associated with 
the new requirements of the regulations. This final rule revises 29 CFR 
part 38, issuing new regulations that set forth the requirements that 
recipients must meet in fulfilling their obligations under Section 188 
of WIOA to ensure nondiscrimination and equal opportunity in WIOA Title 
I federally assisted programs, services, aid, and activities. There 
will be approximately 34,459 recipients annually who will serve 
approximately 56,355,850 beneficiaries annually with approximately 
881,009 non-federal employees of recipients annually based on our 
informed estimates.\414\
---------------------------------------------------------------------------

    \414\ See Table 1 for a breakdown of these numbers.
---------------------------------------------------------------------------

Cost of Regulatory Familiarization
    Agencies are required to include in the burden analysis the 
estimated time it takes for recipients to review and understand the 
instructions for compliance.\415\ Based on its experience with 
recipients' compliance with the laws the Civil Rights Center enforces, 
and the mandate of the existing and revised regulations that each 
recipient has an EO Officer,\416\ the Department believes that EO 
Officers at each recipient will be responsible for understanding or 
becoming familiar with the new requirements. Therefore, the Department 
estimates that it will take 4 hours for each EO Officer to read the 
rule. The Department estimates that each recipient will have one EO 
Officer that will become familiar with the new requirements. 
Consequently, the estimated burden for rule familiarization for these 
EO Officers is 137,836 hours (34,459 x 4 hours).\417\ The Department 
calculates the total estimated cost as $10,168,754 (137,836 x $73.77/
hour, difference due to rounding).\418\
---------------------------------------------------------------------------

    \415\ See 5 CFR 1320.3(b)(1)(i).
    \416\ See 29 CFR 38.23 (2015 rule); Sec.  38.28 (this final 
rule).
    \417\ This estimate is high because there are some exceptions to 
the EO Officer requirement. See, e.g., Sec.  38.33 (service 
providers are not required to designate a recipient-level EO 
Officer, but are instead monitored by the EO Officer of the Governor 
or local area grant recipient).
    \418\ Throughout this final rule, the Department assumes that EO 
Officers are managers.
---------------------------------------------------------------------------

    The following is a description of additional costs and burdens 
resulting from this final rule. It follows the organization of this 
final rule for ease of reference.

Subpart A--General Provisions

Discrimination Prohibited Based on Pregnancy Sec.  38.8
    The final rule includes Sec.  38.8 titled ``Discrimination 
prohibited based on pregnancy.'' One of the requirements of this 
section is--in addition to requiring that recipients not discriminate 
against an individual based on pregnancy, childbirth or related medical 
conditions--to require that recipients in certain situations provide 
reasonable accommodations or modifications to a pregnant applicant or 
participant or employee who is temporarily unable to participate in 
some portions of a WIOA Title I-financially assisted training

[[Page 87203]]

program or activity because of pregnancy, childbirth, or related 
medical conditions, when such accommodations or modifications are 
provided, or are required to be provided, by a recipient's policy or by 
other relevant laws.
    To determine the burden of this accommodation provision, the 
Department estimated the number of beneficiaries and the number of 
employees of recipients who may need an accommodation during pregnancy 
in a given year. No specific data sets detail the characteristics of 
these beneficiaries and employees relating to pregnancy.
    Thus, the Department relied on the data sets available from the 
Employment and Training Administration (ETA) for beneficiaries of WIOA 
Title I financially assisted training programs, including the Job Corps 
Program, and estimated the number of recipients' employees based on 
data sets available for the general population and general labor force. 
The Department concluded that the characteristics of the general labor 
force are similar to the WIOA Title I financially assisted workforce.
    Not every pregnant employee of a recipient in the WIOA Title I 
financially assisted workforce will require an accommodation that might 
involve more than a de minimis cost. In fact, the Department concluded 
that most will not. Many will have no medical condition associated with 
their pregnancies that require such accommodation. Providing light duty 
or accommodations for pregnancy generally involves adjusting work 
schedules or allowing more frequent breaks, both of which the 
Department concluded will incur little to no additional cost in most 
cases.
    For those who do have such conditions, however, the positions held 
by employees or training opportunities that beneficiaries may 
participate in that require such accommodation generally involve 
physical exertion or standing; such positions are likely to be found in 
the occupational categories of craft workers, operatives, laborers, and 
service workers. The majority of employees of recipients and 
beneficiaries of WIOA Title I financial assistance will not be 
undertaking employment or training requiring accommodations for 
pregnancy-related medical conditions. As stated above, providing light 
duty or accommodation for pregnancy typically involves adjusting 
schedules or allowing more frequent breaks at little or no additional 
cost. However, a small percentage of the adult women who will annually 
receive training from eligible training providers, on-the-job training 
programs or Registered Apprenticeship programs and a small percentage 
of the female students who will receive Job Corps Center services 
annually may need accommodations.
    The Department estimates that, of the women who are employees of 
recipients or participants in training programs or in Job Corps 
Centers, 21 percent work in or are in training for job categories 
likely to require accommodations that might involve more than a de 
minimis cost.\419\
---------------------------------------------------------------------------

    \419\ This analysis is similar to that conducted by OFCCP in its 
final sex discrimination rule. OFCCP based this estimate on data 
from the Employer Information Report EEO-1. See OFCCP Sex 
Discrimination Final Rule, supra note 19, at 39145-46.
---------------------------------------------------------------------------

    Because these data about employees of recipients or participants in 
training programs do not indicate gender demographics, the Department 
used data from the BLS that indicate that about 47 percent of the 
workforce is female.\420\ Therefore, the Department estimates that 
57,666 (122,693 x .47) adult women are beneficiaries of eligible 
training providers and on the job training employers annually.\421\ In 
addition, the Department estimates that 7.1 percent of active 
beneficiaries in Registered Apprenticeship programs are female, for a 
total of 14,023 (197,500 x .071) adult women in program year 2015.\422\ 
Moreover, the Department estimates that there are 43,809 girls and 
women who are annual beneficiaries of the Job Corps program (109,523 x 
.40).\423\
---------------------------------------------------------------------------

    \420\ U.S. Department of Labor, Bureau of Labor Statistics, 
Labor Force Statistics from the Current Population Survey (updated 
February 2016), http://www.bls.gov/cps/cpsaat11.htm.
    \421\ From the burden analysis contained in the ETA WIOA Final 
Rule, supra note 309.
    \422\ In 2015, 7.1 percent of active beneficiaries in the 
Registered Apprenticeship program were female. Registered 
Apprenticeship Partners Information Management Data System (RAPIDS) 
managed by Department of Labor staff only.
    \423\ Forty percent of the students benefiting from Job Corps 
programs annually are girls and young women. See Department of 
Labor, Job Corps, Student Outcomes/Who Job Corps Serves (August 
2015), http://www.jobcorps.gov/libraries/pdf/who_job_corps_serves.sflb.
---------------------------------------------------------------------------

    In addition, the Department estimates the number of individuals 
employed by recipients to be 528,303 non-federal employees of eligible 
training providers and on-the-job training programs, Registered 
Apprenticeship programs, and Job Corps Centers (439,936 + 85,317 + 
3,050). Because these data do not indicate gender demographics, the 
Department again used data from the Bureau of Labor Statistics that 
indicate that 47 percent of the workforce is female. Using these 
assumptions, there are 248,302 (528,303 x .47) adult women non-federal 
employees of recipients.
    Based on these data, the Department estimates the approximate 
number of female beneficiaries and employees in (1) eligible training 
provider programs and on-the-job training programs, (2) Job Corps 
Centers and (3) Registered Apprenticeship Programs who are pregnant in 
a given year. Following the analysis adopted by the Office of Federal 
Contract Compliance Programs (OFCCP) to estimate similar costs, the 
Department turned to data from the U.S. Census. The U.S. Census 
American Fact Finder does not report on pregnancy, but does report on 
births. Census data also show whether the mother was in the labor 
force. The definition of labor force used by the Census includes 
individuals in the civilian labor force who are employed or unemployed, 
and the term unemployed, as used by the Census, includes those who were 
actively looking for work during the last four weeks and were available 
to accept a job. The Department determined that this number would be 
the best data available to use to estimate the percentage of female 
participants in programs and activities receiving financial assistance 
from Title I of WIOA as well as employees of WIOA Title I financially 
assisted programs and activities who are pregnant in a given year.
    As the Department concludes these are the best data available, the 
Department used the ratio of women in the labor force who gave birth 
within the last year to the total female labor force as an approximate 
pregnancy rate of women in the workforce. Based on this approach, the 
Department estimates that the pregnancy rate for women in the workforce 
is approximately 4.7 percent.\424\
---------------------------------------------------------------------------

    \424\ U.S. Census Bureau, American Fact Finder, Women 16 to 50 
Years Who Had a Birth in the Past 12 Months by Marital Status and 
Labor Force Status, 2011 to 2013 American Community Survey 3-Year 
Estimates, http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_11_3YR_B13012&prodType=table#. The 
data table reports birth rates for women in the labor force at 4.7 
percent.
---------------------------------------------------------------------------

Training Program Beneficiaries
    As calculated above, approximately 57,666 women annually 
participate in eligible training provider or on-the-job training 
provider programs that receive WIOA title I financial assistance. Of 
this number, using the pregnancy rate data above, 2,710 women might be 
pregnant annually (57,666 x .047). The Department estimates that no 
more than 21 percent, or 569 women (2,710 x .21), would be 
participating in job training categories likely to require

[[Page 87204]]

accommodations that might involve more than a de minimis cost.
Registered Apprenticeship Beneficiaries
    As calculated above, approximately 14,023 women benefit annually 
from Registered Apprenticeship programs. Of this number, using the 
pregnancy rate data above, 659 (14,023 x .047) women might be pregnant 
in a given year. Of this number, the Department estimates that no more 
than 21 percent, or 138 women (.21 x 659), would participate in job 
training categories likely to require accommodations that might involve 
more than a de minimis cost.
Job Corps Program Participants
    Job Corps serves youth and young adults between the ages of 16 and 
24.\425\ Forty percent of Job Corps students (approximately 43,809) are 
female.\426\ Applying the .047 rate of pregnancies used above to all 
female Job Corps students indicates that approximately 2,059 of them 
may become pregnant in a given year (43,809 x .047). The Job Corps 
Program has three stages through which participants move: Career 
Preparation Period, Career Development Period, and Career Transition 
Period. Not all of those students will be in the Career Development 
Period of their Job Corps Center experience, which is the stage when 
they will participate in technical training and will be most likely to 
need accommodations that might involve more than de minimis costs.\427\
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    \425\ U.S. Department of Labor, Job Corps, Eligibility 
Information (June 2013), http://www.jobcorps.gov/AboutJobCorps/program_design.aspx.
    \426\ U.S. Department of Labor, Employment & Training 
Administration, Workforce System Results for the Quarter Ending June 
30, 2013, available at https://www.doleta.gov/performance/results/pdf/workforcesystemresultsjune20_2013.pdf. Annual data for the four 
quarters ending in June 2013. Includes the number of students active 
on the start date, students enrolled during the timeframe, graduates 
separated before the start date and in the placement service window 
during the time frame, and former enrollees separated before the 
start date and in the placement service window during the period.
    \427\ Therefore, we focused on estimating the cost of providing 
accommodations during the Job Corps Career Development Period. 
Although participants may need accommodations during the Career 
Preparation and Career Transition Periods as well, we expect most 
substantial accommodation requests in the Career Development Period.
---------------------------------------------------------------------------

    At any given time, no more than a third of students are in the 
Career Development Period; thus, approximately 679 (2,059 x .33) 
pregnant young women are in this part of their educational experience 
annually. Of this number, the Department estimates that no more than 21 
percent participate in job training that requires physical exertion or 
standing for long periods of time, so at most 143 (679 x .21) Job Corps 
students may be participating in jobs training categories likely to 
require accommodation that might involve more than de minimis cost.
Non-Federal Employees of Recipients
    The Department determined that there are approximately 528,303 non-
federal employees who work for recipients that operate or otherwise 
provide training programs, Job Corps Programs, and Registered 
Apprenticeship programs. Because these data do not indicate gender 
demographics, the Department used data from the BLS that indicate that 
47 percent of the workforce is female.\428\ Because approximately 
248,302 of the employees of recipients are women, 11,670 (248,302 x 
.047) may be pregnant annually based on the data described above. The 
Department anticipates that no more than 21 percent,\429\ or 2,451 
women (.21 x 11,670) of these pregnant employees who are trainers at 
one-stop career centers or at Job Corps Centers, may be participating 
in job training categories likely to require accommodations that might 
involve more than a de minimis cost.
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    \428\ U.S. Department of Labor, Bureau of Labor Statistics, 
Women in the Labor Force: A Databook (Feb. 2013), http://www.bls.gov/cps/wlf-databook-2012.pdf.
    \429\ See OFCCP Sex Discrimination NPRM, supra note 102, at 
5262.
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    Therefore, a total of 3,301 women (569 + 138 + 143 + 2,451, 
difference due to rounding) who are beneficiaries or non-federal 
employees of WIOA Title I financially assisted programs may be 
participating in job training categories likely to require 
accommodations that might involve more than a de minimis cost.
Limited Need for Accommodations
    Reports by the National Institutes of Health indicate that the 
incidence of medical conditions during pregnancy that require 
accommodations ranges from 0.5 percent (placenta previa) to 50 percent 
(back issues).\430\ Thus, the Department estimates that of the 
approximately 3,301 (569 job training beneficiaries + 138 Registered 
Apprenticeship beneficiaries + 143 Job Corps beneficiaries + 2,451 non-
federal employees of recipients, difference due to rounding) women 
beneficiaries and employees in positions that may require physical 
exertion or standing according to our previous estimations, 50 percent 
(1,651) may require some type of an accommodation or light duty.\431\
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    \430\ S. Malmqvist et al., Prevalence of low back and pelvic 
pain during pregnancy (Abstract), J. Manipulative Physiological 
Therapy, National Center for Biotechnology Information (2012), 
http://www.ncbi.nlm.nih.gov/pubmed/22632586.
    \431\ These are the same data used in the OFCCP Sex 
Discrimination NPRM, supra note 102.
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    The types of accommodations needed during pregnancy also vary. They 
range from time off for medical appointments and more frequent breaks 
to stools for sitting and assistance with heavy lifting.\432\ Reports 
by the W.K. Kellogg Foundation on women's child bearing experiences and 
the National Women's Law Center on accommodating pregnant workers show 
that the costs associated with accommodating pregnant workers are 
minimal and generally involve schedule adjustments or modified work 
duties.\433\
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    \432\ Stephen Bernard, Professor of Sociology, Indiana 
University, Unlawful Discrimination Against Pregnant Workers and 
Workers with Caregiving Responsibilities: Meeting of the U.S. Equal 
Employment Opportunity Commission (February 15, 2012), http://www.eeoc.gov/eeoc/meetings/2-15-12/transcript.cfm.
    \433\ National Women's Law Center & A Better Balance, It 
Shouldn't Be a Heavy Lift: Fair Treatment for Pregnant Workers 
(2013), http://www.nwlc.org/sites/default/files/pdfs/pregnant_workers.pdf.
---------------------------------------------------------------------------

    One study found that, when faced with a pregnancy-related need for 
accommodation, between 62 percent to 74 percent of pregnant women asked 
their employers to address their needs. The study further found that 87 
percent to 95 percent of the pregnant women who requested an adjustment 
to their work schedule or job duties worked for employers that 
attempted to address those requests. The study specifically found that 
63 percent of pregnant women who needed a change in duties, such as 
less lifting or more sitting, asked their employers to address that 
need, and 91 percent of those women worked for employers that sought to 
address their needs.\434\ Based on this study, the Department concluded 
that most employers and training providers do provide some form of 
accommodation to employees and participants when requested.
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    \434\ Eugene Declerq et al., W.K. Kellogg Foundation, Listening 
to Mothers III: New Mothers Speak Out, 36 (2013).
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    To determine the cost of accommodation or light duty associated 
with this final rule, the Department considered the types of light duty 
or accommodations needed for both participants in WIOA Title I programs 
and activities, and employees of recipients. Generally, providing light 
duty or accommodation for pregnancy involves adjusting work schedules 
or allowing more frequent breaks. The Department concludes that 
providing these accommodations will result in little to no additional 
cost.

[[Page 87205]]

    Additional accommodations may involve either modifications to work 
and training environments (e.g., providing a stool for sitting rather 
than standing) or to job duties (e.g., lifting restrictions). In making 
such accommodations, recipients have discretion regarding how they 
would make such modifications. For example, a recipient may provide an 
employee or participant with an existing stool, or a recipient may have 
others assist when heavy lifting is required. To determine the cost of 
such accommodations, the Department referred to the Job Accommodation 
Network (JAN), which reports that the average cost of accommodation is 
$500.\435\
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    \435\ Beth Loy, Job Accommodation Network, Workplace 
Accommodations: Low Cost, High Impact (updated September 2015), 
http://askjan.org/media/lowcosthighimpact.html. Given that there are 
not accommodation cost data for pregnancy, the Department uses this 
as an approximation because it involves modification to work 
environments including lifting restrictions and other relevant 
factors.
---------------------------------------------------------------------------

    As stated above, 63 percent of pregnant women who needed a change 
in duties related to less lifting or more sitting requested such an 
accommodation from their employers. Thus, the Department estimates that 
1,040 women (1,651 x .63) who may require accommodations would have 
made such a request, and 91 percent, or 946 of those requests (1,040 x 
.91) would have been addressed. Thus, this final rule requires 
recipients to accommodate the remaining 9 percent of pregnant women 
whose needs were not addressed. The Department calculates that the 
cost, accounting for pregnant women who made requests and the 
additional women who could make requests, will be $47,000 ((1,040-946 = 
94) = 94 x $500, difference due to rounding). This is a first-year cost 
and a recurring cost.
    The Department concludes that this cost estimate may be an 
overestimate because recipients with 15 or more employees are covered 
by a similar requirement in Title VII of the Civil Rights Act; because 
36 States have requirements that apply to employers with fewer than 15 
employees; \436\ and because only employees employed in the 
administration of or in connection with WIOA Title I programs or 
activities are covered by this rule.\437\ Moreover, to the extent a 
pregnancy-related medical condition is a disability, recipients with 15 
or more employees are also already covered by similar requirements in 
the ADA, as amended by the ADAAA.
---------------------------------------------------------------------------

    \436\ The following States have laws that cover employers with 
one employee: Alaska, Colorado, Hawaii, Maine, Michigan, Minnesota, 
Montana, New Jersey, North Dakota, Oklahoma, Oregon, South Dakota, 
Vermont, and Wisconsin. One State has laws that cover employers with 
two employees: Wyoming. One State has laws that cover employers with 
three employees: Connecticut. The following States have laws that 
cover employers with four employees: Delaware, Iowa, Kansas, New 
Mexico, New York, Ohio, Pennsylvania, and Rhode Island. The 
following States have laws that cover employers with five employees: 
California and Idaho. The following States have laws that cover 
employers with six employees: Indiana, Massachusetts, Missouri, New 
Hampshire, and Virginia. The following States have laws that cover 
employers with eight or more employees: Kentucky, Tennessee, and 
Washington. One State has laws that cover employers with nine or 
more employees: Arkansas. One State has laws that cover employers 
with 12 or more employees: West Virginia. In addition, the District 
of Columbia and Puerto Rico's laws cover employers with one 
employee.
    \437\ See Sec.  38.2(a)(3).
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    CRC received one comment that addressed the economic analysis of 
this provision in the NPRM. A coalition of eighty-six women's, 
workers', and civil rights organizations agreed with the Department's 
estimation of the burdens on recipients of accommodating pregnant 
applicants, participants, and employees.
Discrimination Prohibited Based on National Origin, Including Limited 
English Proficiency Sec.  38.9
    This final rule includes language regarding the limited 
circumstances when limited English proficient (LEP) individuals may 
elect to use their own interpreters and how that choice must be 
documented by the recipient. In Sec.  38.9(f)(2)(ii), this final rule 
states that an accompanying adult may interpret or facilitate 
communication when ``the information conveyed is of minimal importance 
to the services to be provided or when the LEP individual specifically 
requests that the accompanying adult provides language assistance, the 
accompanying adult agrees to provide assistance, and reliance on that 
adult for such assistance is appropriate under the circumstances.'' 
This final rule goes on to state that ``[w]hen the recipient permits 
the accompanying adult to provide such assistance, it must make and 
retain a record of the LEP individual's decision to use their own 
interpreter.''
    There are currently no data available regarding the number of LEP 
individuals who are beneficiaries of recipients and the Department was 
unable to determine how often an LEP individual will request that an 
accompanying adult provide language assistance, the accompanying adult 
agrees to provide it, and when reliance on that adult is appropriate. 
However, the Department concludes that all of these conditions will be 
met infrequently, creating a de minimis cost.
    In addition, provisions are included in Sec.  38.9(g) regarding a 
recipient's obligations to provide translation of vital information. 
Section 38.9(g)(1) addresses that obligation for languages spoken by a 
significant number or portion of the population eligible to be served, 
or likely to be encountered, stating that ``a recipient must translate 
vital information in written materials into these languages and make 
the translations readily available in hard copy, upon request, or 
electronically such as on a Web site.''
    Importantly, written training materials offered or used within 
employment-related training programs as defined under this part are 
excluded from these requirements. Section 38.9(g)(2) addresses the 
obligations of recipients for languages not spoken by a significant 
number or portion of the population eligible to be served, or likely to 
be encountered, stating that ``a recipient must take reasonable steps 
to meet the particularized language needs of LEP individuals who seek 
to learn about, participate in, and/or access the aid, benefit, 
service, or training that the recipient provides.'' This section also 
allows that vital information may be conveyed orally if not translated. 
The requirement to take reasonable steps to provide services and 
information in appropriate languages was contained in the DOL LEP 
Guidance issued in 2003 \438\ and was also required by the 1999 and 
2015 rules, which addressed a recipient's language access 
obligations.\439\
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    \438\ DOL LEP Guidance, supra note 28.
    \439\ See 29 CFR 37.35 (1999 rule); 29 CFR 38.35 (2015 rule).
---------------------------------------------------------------------------

    The Department was unable to assess what information each recipient 
will determine is vital, and thus needs to be translated, or what 
languages they would be translated into, because both factors are based 
on individual recipient assessments. Furthermore, as discussed in the 
preamble to Sec.  38.9, the Department has not defined ``significant 
number or portion of the population.''
    The Department received several public comments that addressed the 
economic analysis of this provision in the NPRM. The NPRM requested 
comment on the potential burden of the requirement to provide language 
services for LEP individuals in their preferred language based on a 
threshold (e.g., 5 percent of the population or 1,000 speakers). 
Several State government commenters indicated that depending on what 
threshold is selected, it could result in a significant cost burden. 
However, the commenters did not provide any specific cost

[[Page 87206]]

information as they indicated that the cost would significantly vary 
with the level of language assistance services provided and the 
frequency with which languages would be encountered.
    As discussed in the preamble to Sec.  38.9 above, CRC considered 
setting thresholds which would trigger a requirement to translate 
standardized vital documents into particular languages but has not 
adopted such thresholds in this final rule. Although thresholds may 
improve access for some national origin populations, the approach does 
not comprehensively effectuate WIOA's prohibition of national origin 
discrimination affecting LEP individuals. Setting thresholds would be 
both under-inclusive and over-inclusive, given the diverse range, type, 
and sizes of entities covered by Section 188 and the diverse national 
origin populations within the service areas of recipients' respective 
programs and activities. For instance, a threshold requiring all 
covered entities, regardless of type or size, to provide language 
assistance services in languages spoken by 5 percent of a county's LEP 
population could result in the provision of language assistance 
services in more languages than the entity would otherwise be required 
to provide under its obligation in Sec.  38.9(g). This threshold would 
apply regardless of the number of individuals with limited English 
proficiency who are eligible to be served or likely to be encountered 
by the recipient's programs or activities and regardless of the 
recipient's operational capacity. Similarly, this threshold could leave 
behind significant numbers of individuals with limited English 
proficiency served by the recipient's programs or activities, who 
communicate in a language that constitutes less than 5 percent of the 
county's limited English proficient population.
    Although some federal regulations set thresholds, those regulations 
address entities or programs of similar sizes and types. \440\ In 
comparison, WIOA and this part regulate more diverse types of 
recipients with potentially more diverse limited English proficient 
populations. CRC is concerned that significant limited English 
proficient populations might receive no or inadequate language 
assistance services under a threshold-based regulation. CRC is also 
concerned about the burden an across-the-board translation threshold 
might place on small covered entities.
---------------------------------------------------------------------------

    \440\ See 45 CFR 155.205(c)(2)(iii), (iv) (regarding HHS's 
regulation of health care exchanges); 26 CFR 1.501(r)-4(b)(5)(ii) 
(Department of the Treasury's regulation regarding hospital 
organizations and financial assistance policies); 7 CFR 272.4(b) 
(Department of Agriculture's Supplemental Nutrition Assistance 
Program).
---------------------------------------------------------------------------

    Moreover, we value the flexibility inherent in the contextualized 
approach we have chosen to assess compliance with the requirement to 
take reasonable steps to provide meaningful access. This provision is 
intended to be a flexible standard specific to the facts of each 
situation. CRC could not determine what information each recipient will 
determine is vital, and thus needs to be translated, or what languages 
they would be translated into, because both factors are based on 
individual recipient assessments. Providing additional specificity, at 
least in this final rule, would apply rigid standards across-the-board 
to all recipients and thus jeopardize that very goal. Accordingly, this 
rule imposes no new obligations in this regard.
    The NPRM proposed that recipients take appropriate steps to ensure 
that communications with individuals with disabilities are as effective 
as communications with other individuals. One commenter suggested that 
this requirement may impose additional costs and result in providers 
not listing their training programs.
    Although proposed Sec.  38.15 revised the title of Sec.  38.9 in 
the 2015 rule to ``Communications with individuals with disabilities'' 
and revised paragraph (a) and (b) to be consistent with DOJ's ADA Title 
II regulations, no new substantive requirements were outlined from 
those contained in the 1999 and 2015 rules. As with WIA Section 188, a 
recipient must take appropriate steps to ensure that communications 
with individuals with disabilities are as effective as communications 
with others. A recipient must furnish appropriate auxiliary aids and 
services where necessary to accomplish this. The type of auxiliary aid 
or service necessary to ensure effective communication varies in 
accordance with the method of communication used by the individual; the 
nature, length, and complexity of the communication involved; and the 
context in which the communication is taking place. In determining what 
type of auxiliary aid and service is necessary, a recipient must give 
primary consideration to the request of an individual with a 
disability. Thus, the provision of auxiliary aids and services is 
always individually based and depends on a number of factors.
    The Department recognizes changes to WIOA expanded the 
applicability of CRC's requirements to cover additional entities, and 
that there may be new entities not previously covered. However, the 
requirements of this final rule with respect to auxiliary aids and 
services are generally not new to these entities. Other federal 
statutes such as the ADA and the Rehabilitation Act already contain the 
same requirements regarding the provision of auxiliary aids and 
services for individuals with disabilities. Consequently, CRC does not 
agree that it imposes any additional costs.

Subpart B--Recordkeeping and Other Affirmative Obligations of 
Recipients

Equal Opportunity Officers
Designation of Equal Opportunity Officers Sec.  38.28
    Every Governor must designate an individual as a State-level Equal 
Opportunity Officer (EO Officer), who reports directly to the Governor 
and is responsible for State Program-wide coordination of compliance 
with the equal opportunity and nondiscrimination requirements.
    Several commenters indicated this requirement would not only 
increase monitoring efforts, but also require increases in staffing. 
They also indicated that the requirement to designate an individual who 
reports directly to the Governor is an unfunded mandate.
    The Department disagrees with the assertion that this requirement 
would result in an increase in staffing or that it is an unfunded 
mandate. Governors retain flexibility as to whom to designate as the 
State-level EO Officer, which includes the ability to restructure the 
current EO Officer position to meet the requirements of Sec. Sec.  
38.28 through 38.31. The requirement that recipients, including 
Governors, designate an EO Officer is longstanding and exists under the 
2015 rule, just as it existed under the 1999 rule. In practice, most 
Governors have empowered a designee, typically, the director(s) of a 
State cabinet agency or agencies that oversee(s) labor and workforce 
programs, to appoint an EO Officer often times referred to as the State 
EO Officer. That EO Officer reported to the State agency cabinet 
director and, in practice, often limited oversight to the EO Officer's 
own specific agency. However, the Governor has obligations beyond the 
duties of a recipient to ensure nondiscrimination and equal opportunity 
across all State Programs including State Workforce Agencies. Indeed, 
under certain circumstances the Governor can be held jointly and 
severally liable for all violations of these nondiscrimination and 
equal opportunity provisions under Sec.  38.52, which includes State 
Workforce Agencies as defined in Sec.  38.4(lll), and

[[Page 87207]]

State Programs as defined in Sec.  38.4(kkk). The final rule's 
requirement serves to emphasize the importance of the Governor's 
obligations, and ensure that a State-level EO Officer can carry out 
those obligations--with authority flowing from the Office of the 
Governor and with the staff and resources sufficient to carry out those 
requirements.
    The changes in the rule do not impede the flexibilities available 
for a Governor to determine how the equal opportunity program works in 
the State, and is described in the Governor's Nondiscrimination Plan. 
For example, the Governor can designate a new State-level EO Officer or 
restructure the current EO Officer position as the Governor's State-
level EO Officer. As noted above, the rule does not change the 
definition of ``Governor,'' and an individual designated to act on the 
Governor's behalf may also carry out the responsibilities of the 
Governor under this part. In that case, the Governor's authority to 
ensure equal opportunity would flow to the Governor's designee and, in 
turn, to the State-level EO Officer. The State-level EO Officer would 
then have the authority necessary to carry out the Governor's equal 
opportunity obligations.
Recipients' Obligations To Publish an Equal Opportunity Notice Sec.  
38.36
    This final rule includes changes to the specific language provided 
by the Department for recipients to use in the equal opportunity notice 
and poster that they are required to post prominently in physical 
locations and on the recipient's Web site.\441\ The changes include 
notice that communications with individuals with disabilities must be 
as effective as communications with others and of the right to request 
auxiliary aids and services at no cost; a statement that discrimination 
on the basis of sex includes discrimination on the basis of pregnancy, 
childbirth and related medical conditions, sex stereotyping, 
transgender status, and gender identity; and that discrimination on the 
basis of national origin may include discrimination on the basis of 
limited English proficiency.\442\ Because this notice and other notices 
throughout this final rule are required to be provided in English as 
well as appropriate languages other than English, the Department will 
make translations of this notice available to recipients in the ten 
most frequently spoken languages in the U.S. other than English. This 
final rule also requires the inclusion of language in the poster 
stating that the CRC will accept complaints via U.S. mail and email at 
an address provided on the CRC Web site.\443\
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    \441\ Sec. Sec.  38.35, 38.36(a)(1).
    \442\ Sec.  38.35.
    \443\ Id.
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    This final rule requires that the notice be placed in employee and 
participant handbooks, including electronic and paper forms if both are 
available, provided to each employee and placed in each employee's file 
(both paper and electronic, if both are available).\444\
---------------------------------------------------------------------------

    \444\ Sec.  38.36(b).
---------------------------------------------------------------------------

    The Department estimates that it would take each EO Officer 
approximately 15 minutes to print out the notices and another 15 
minutes to ensure that new notices and posters are disseminated. 
Dissemination includes posting the notice in conspicuous locations in 
the physical space of the recipient and posting it on appropriate Web 
pages on the recipient's Web site. Consequently, the estimated first-
year dissemination burden is 17,230 hours (34,459 recipients x 1 EO 
Officer x .5 hours). The Department calculates the total estimated 
first-year and dissemination cost for the EO Officers as $1,271,094 
(17,230 hours x $73.77/hour). The Department also estimates that each 
EO Officer will make 30 copies of the notice (assuming 10 copies each 
in three languages) for posting in the EO Officer's establishment for a 
first-year operational and maintenance cost of $82,702 (34,459 x $.08 x 
30).
    Additionally, the Department assumes it will take a computer 
programmer 30 minutes to place the notice on appropriate Web pages of 
the recipient's Web site. The Department assumes that each recipient 
has one Web site. The Department calculates the first-year burden to 
update recipients' Web sites to be an additional 17,230 hours (34,459 x 
1 programmer x .5 hours) and the first-year costs for recipients to 
update their Web sites to be an additional $1,034,404 (17,230 x $60.04/
hour, difference due to rounding). The Department also assumes that it 
will take an EO Officer 30 minutes to disseminate to all employees of 
recipients a copy of the notice and place a copy in the employee files. 
The Department calculates an additional first-year burden for 
dissemination to be 17,230 hours (34,459 x .5 hours) and an additional 
first-year cost of $1,271,094 (17,230 x $73.77/hour, difference due to 
rounding).
    Moreover, there is a recurring burden each time an employee is 
hired. The Department assumes an 18.9 percent \445\ employee hires rate 
per year for a total of 166,511 new employees in the second and future 
years (881,009 (total number of recipients' employees) x .189). The 
Department estimates that it will take an EO Officer 15 minutes to 
disseminate the notice to recipients' new employees each year, which 
equates to a burden of 41,628 hours (166,511 x .25 hours) and the total 
recurring cost to be $3,070,879 (41,628 hours x $73.77, difference due 
to rounding). The first-year operation and maintenance cost for 
printing the two copies of the notice (one to disseminate to the 
employee and one to place in their file) for the first year is $140,961 
(881,009 (total number of recipients' employees) x $0.08 x 2 copies) 
and the second and future years' operation and maintenance cost is 
$26,642 (166,511 new employees x $0.08 x 2 copies) for copies made for 
new employees each year.
---------------------------------------------------------------------------

    \445\ U.S. Department of Labor, Bureau of Labor Statistics, 
state and local government ``hires'' data for annual average (2015), 
http://www.bls.gov/jlt/#news.
---------------------------------------------------------------------------

Data and Information Collection, Analysis, and Maintenance Sec.  38.41
    Paragraph (a)(2) adds ``limited English proficiency'' and 
``preferred language'' to the list of categories of information that 
each recipient must collect about each applicant, registrant, 
participant, and terminee. The rule does not apply these data 
collection obligations to applicants for employment and employees of 
recipients because the obligation regarding limited English proficient 
(LEP) individuals does not apply to those categories of individuals. 
This change is intended to ensure that recipients collect information 
related to serving LEP individuals. The Department concludes that these 
terms best capture this information as to LEP individuals and are also 
used by several States with language access laws.\446\
---------------------------------------------------------------------------

    \446\ See supra note 228 and accompanying text.
---------------------------------------------------------------------------

    The Department calculates the cost of adding this category to the 
list of categories of information that each recipient must collect 
about each applicant and participant as de minimis for the recipient 
because they are already collecting demographic data from beneficiaries 
in several other categories and these additions will be added to this 
existing process. Furthermore, the Department estimates that, on 
average, it will take beneficiaries 5 seconds to provide LEP 
information including preferred language, where applicable, 
voluntarily. This equates to an annual cost of $567,472 (56,355,850 x 5 
seconds = 281,779,250/60 = 4,696,320 minutes/60 = 78,272 hours x $7.25/
hour). This provision will go into effect in the third year.

[[Page 87208]]

    For recipients that are not already collecting this 
information,\447\ the Department estimates that there will be a one-
time cost in the third year to each recipient of 1.5 hours of a 
computer programmer's time to incorporate these new categories into an 
online form for data collection. The Department concludes that all 
recipients use computer-based data collection methods, and the one-time 
burden is $3,103,212 (34,459 recipients x 1 programmer x 1.5 hours x 
$60.04/hour, difference due to rounding).
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    \447\ Programs providing core and intensive services through the 
one-stop delivery system currently collect information regarding LEP 
status and some may be doing so voluntarily; however, we have no way 
of knowing how many recipients overall are currently collecting 
information from beneficiaries regarding LEP status, so we are 
including the cost to all recipients for this analysis.
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Required Maintenance of Records by Recipients Sec.  38.43
    This final rule includes language that specifies the types of 
records that need to be retained by a recipient when a complaint has 
been filed, and also requires that records be kept if a compliance 
review has been initiated. Records that must be kept include any type 
of hard-copy or electronic record related to the complaint or the 
compliance review.
    The Department assumes that the only additional burden and 
associated cost will be to identify additional files that a recipient 
must retain beyond 3 years if they receive notice of a complaint or are 
under a compliance review. The Department further assumes this cost to 
be de minimis.

Subpart C--Governor's Responsibilities To Implement the 
Nondiscrimination and Equal Opportunity Requirements of the Workforce 
Innovation and Opportunity Act (WIOA)

Governor's Oversight and Monitoring Responsibilities for State Programs 
Sec.  38.51
    Section 38.51(b) of the final rule requires the Governor to monitor 
on an annual basis the compliance of State Programs with WIOA Section 
188 and this part. Under the 2015 rule, Governors were required to 
``periodically'' monitor compliance of recipients. The new annual 
monitoring requirement is intended to: (1) Enable the timely 
identification and elimination of discriminatory policies and 
practices, thereby reducing the number of individuals impacted by 
discrimination; (2) be consistent with the Department's regulations 
requiring annual oversight of one-stop career centers; \448\ and (3) 
establish a consistent state-level practice nationwide. It is 
anticipated that this change will represent a burden to some Governors 
who are not already interpreting the term ``periodically'' in the 
current regulations to require annual oversight. The Department 
anticipates that this change will not impose a burden on all States 
because approximately half of them are currently conducting this 
monitoring annually, pursuant to their Methods of Administration.\449\ 
Thus, the Department estimates that the burden will be imposed on 29 of 
the 57 States subject to this requirement that currently do not 
annually monitor their recipients for compliance with Section 188 of 
WIOA. Of the States that do not conduct annual monitoring, the 
Department is aware that the monitoring is conducted every 3 years on 
average. Thus, 29 States will need to increase their monitoring from 
once every 3 years to yearly.
---------------------------------------------------------------------------

    \448\ ETA WIOA Final Rule, supra note 309.
    \449\ This is based on CRC's records of reporting and 
discussions with EO Officers for the States over the past few years.
---------------------------------------------------------------------------

    Based on the Department's experience and interaction with several 
States with varying populations and geographic sizes, the average 
amount of time that it takes each State's EO Officer and similar 
managers to conduct this annual monitoring is approximately 4,000 hours 
in total carried out by multiple people. The additional burden on each 
of the 29 States that previously conducted monitoring every 3 years 
versus every year is estimated to be 2,680 hours (4,000 hours x .67) 
\450\ per State annually or 77,720 for all 29 States (2,680 hours x 29 
States) annually. The Department calculates the total estimated annual 
cost for States at $5,733,739 (29 States x 2,680 hours x $73.77/hour, 
difference due to rounding).
---------------------------------------------------------------------------

    \450\ This is based on information from CRC's experience working 
with the States and asking several EO Officers these questions.
---------------------------------------------------------------------------

Governor's Obligation To Develop and Implement a Nondiscrimination Plan 
Sec.  38.54
    This rule changes the name ``Methods of Administration'' for the 
document described in Sec.  38.54 to ``Nondiscrimination Plan,'' but 
retains the definition and contents of the document. Since the contents 
of the Plan did not change, the change of the title of the document was 
presumed to be incurred in the total cost of the issuance of the Plan.

Subpart D--Compliance Procedures

Notice To Show Cause Issued to a Recipient Sec.  38.66
    The new language in Sec.  38.66(b), states that the Director may 
issue a Notice to Show Cause to a recipient ``after a Letter of 
Findings and/or an Initial Determination has been issued, and after a 
reasonable period of time has passed within which the recipient refuses 
to negotiate a conciliation agreement with the Director regarding the 
violation(s).'' The Department made this change to expand the 
circumstances in which the Director may issue a Notice to Show Cause. 
This final rule seeks to use the Notice to Show Cause at this later 
stage because it has been the Department's experience that, after 
issuing a letter of findings or initial determination, the Governor or 
other recipients may agree in principle to enter into a conciliation 
agreement that resolves the identified violations, but then frequently 
fail to respond to correspondence from the CRC regarding finalizing and 
signing the agreement.
    With Sec.  38.66(b), the Director could issue a Notice to Show 
Cause prior to issuing a final Determination, providing Governors and 
other recipients another opportunity to take the corrective or remedial 
actions required by the Director to bring the recipient into compliance 
before enforcement proceedings are initiated. Recipients are already 
familiar with the Notice to Show Cause because it is currently 
described and contained in the implementing regulations found at 29 CFR 
38.67, so these changes are slight, and the language is clear in terms 
of the new circumstances under which the Director can issue them. The 
Department estimates that it will issue at most two additional Show 
Cause Notices per year on average as a result of this change. Based on 
this, the Department estimates the burden incurred to be de minimis.
Required Elements of a Recipient's Complaint Processing Procedures 
Sec.  38.72
    This final rule adds a paragraph obligating recipients to give 
complainants a copy of the equal opportunity notice in Sec.  38.35, 
along with other notices already required by the 1999 and 2015 rules, 
including written acknowledgement that the recipient has received a 
complaint and notice of the complainant's right to representation. This 
new requirement is designed to ensure that complainants are aware of 
their rights, including that they have the option of filing with the 
recipient or with CRC, and that they are

[[Page 87209]]

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

                                          Table 3--Annual Burden Hours
----------------------------------------------------------------------------------------------------------------
                                                                                                     Year 4-10
                    Provision                         Year 1          Year 2          Year 3          (annual
                                                                                                     average)
----------------------------------------------------------------------------------------------------------------
Cost of regulatory familiarization..............         137,836               0               0               0
Discrimination prohibited based on pregnancy                   0               0               0               0
 (Sec.   38.8)..................................
Recipients' obligations to publish equal                  51,689          41,628          41,628          41,628
 opportunity notice (Sec.   38.36)..............
Data and information collection, analysis, and                 0               0         129,961          78,272
 maintenance (Sec.   38.41).....................
Governor's oversight and monitoring                       77,720          77,720          77,720          77,720
 responsibilities for state programs (Sec.
 38.51).........................................
Required elements of a recipient's complaint              17,230          17,230          17,230          17,230
 processing procedures (Sec.   38.72)...........
Operation and maintenance costs.................              NA              NA              NA              NA
                                                 ---------------------------------------------------------------
    Total.......................................         284,474         136,577         266,538         214,849
----------------------------------------------------------------------------------------------------------------


                                                                  Table 4--Annual Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Year 4-10
                Provision                     Year 1          Year 2          Year 3          (annual      10 Year total    Annualized      Annualized
                                                                                             average)                         with 3%         with 7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost of regulatory familiarization......     $10,168,754              $0              $0              $0     $10,168,754      $1,157,367       $1,353,86
Discrimination prohibited based on                47,000          47,000          47,000          47,000          47,000          47,000          47,000
 pregnancy (Sec.   38.8)................
Recipients' obligations to publish equal       3,576,593       3,071,053       3,071,053       3,071,053      31,216,066       3,128,591       3,138,321
 opportunity notice (Sec.   38.36)......
Data and information collection,                       0               0       3,670,684         567,472       7,642,989         773,099         782,056
 analysis, and maintenance (Sec.
 38.41).................................
Governor's oversight and monitoring            5,733,739       5,733,739       5,733,739       5,733,739      57,337,386       5,733,739       5,733,739
 responsibilities for state programs
 (Sec.   38.51).........................
Required elements of a recipient's             1,271,094       1,271,094       1,271,094       1,271,094       1,271,094       1,271,094       1,271,094
 complaint processing procedures (Sec.
 38.72).................................
Operation and maintenance costs.........         226,420          29,398          29,398          29,398         491,006          51,823          55,615
                                         ---------------------------------------------------------------------------------------------------------------
    Total (Undiscounted)................      21,023,600      10,152,284      13,822,968      10,719,756     120,037,144      12,162,713      12,380,910
                                         ---------------------------------------------------------------------------------------------------------------
    Total with 3% discounting...........      21,023,600       9,856,586      13,029,473       8,993,323     106,862,919  ..............  ..............
                                         ---------------------------------------------------------------------------------------------------------------
    Total with 7% discounting...........      21,023,600       9,488,116      12,073,516       7,208,598      93,045,418  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------

B. Paperwork Reduction Act

    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 PRA requires certain actions before an agency 
can adopt or revise a collection of information, including publishing 
the information collection for public comment.
    As part of continuing efforts to reduce paperwork and respondent 
burden, the Department conducts preclearance consultation activities to 
provide the general public and federal agencies with an opportunity to 
comment on proposed and continuing collections of information in 
accordance with the PRA.\451\ This activity helps to ensure that: (1) 
The public understands the collection instructions; (2) respondents can 
provide the requested data in the desired format; (3) reporting burden 
(time and financial resources) is minimized; (4) respondents clearly 
understand the collection instruments; and (5) the Department can 
properly assess the impact of collection requirements on respondents. 
Furthermore, the PRA requires all federal agencies to analyze proposed 
regulations for potential burdens on the regulated community created by 
provisions in the proposed regulations, which require the submission of 
information. The information collection requirements must also be 
submitted to the OMB for approval.
---------------------------------------------------------------------------

    \451\ See 44 U.S.C. 3506(c)(2)(A).
---------------------------------------------------------------------------

    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

[[Page 87210]]

collection of information that does not display a valid Control 
Number.\452\ The Department obtains approval for Nondiscrimination 
Compliance Information Reporting under Control Number 1225-0077.
---------------------------------------------------------------------------

    \452\ See 44 U.S.C. 3512; 5 CFR 1320.5(a), 1320.6.
---------------------------------------------------------------------------

    The information collections in this final rule are summarized in 
the section-by-section discussion of this final rule in Section II. The 
Department has identified that the following proposed sections contain 
information collections: 29 CFR 38.14, 38.16(f), 38.25, 38.27, 38.29, 
38.34-38.36, 38.38, 38.39-38.43, 38.51, 38.52-38.54, 38.55, 38.69, 
38.70, 38.72, 38.73, 38.74, and 38.77. Additional information 
collections approved under Control Number 1225-0077 appear in part 37, 
encompassing similar nondiscrimination requirements under the Workforce 
Investment Act (WIA), of this title; they will be maintained on a 
temporary basis while existing WIA grants remain in effect.
    Concurrent with the publication of this final rule, the Department 
is submitting an associated information collection request to the 
Office of Management and Budget for approval. Interested parties may 
obtain a copy free of charge of one or more of the information 
collection requests submitted to the OMB on the reginfo.gov Web site at 
http://www.reginfo.gov/public/do/PRAMain. From the Information 
Collection Review tab, select Information Collection Review. Then 
select the Department of Labor from the Currently Under Review dropdown 
menu, and lookup Control Number 1225-0077. A free copy of the requests 
may also be obtained by contacting the person named in the ADDRESSES 
section of this preamble.
    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 and Private Sector--
businesses or other for profits and not for profit institutions.
    Total Estimated Number of Respondents: 105,259.
    Total Estimated Number of Responses: 56,324,784.
    Total Estimated Annual Time Burden: 315,339.
    Total Estimated Annual Other Costs Burden: $0.

C. Executive Order 13132 (Federalism)

    The Department has reviewed this rule in accordance with Executive 
Order 13132 regarding federalism, and has determined that it does not 
have ``federalism implications.'' This 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.''

D. Unfunded Mandates Reform Act of 1995

    For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1532, this rule does not include any federal mandate that may result in 
excess of $100 million in increased expenditures by State, local, and 
tribal governments in the aggregate, or by the private sector of $100 
million or more.

E. Plain Language

    The Department drafted this final rule in plain language.

F. Effects on Families

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

G. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 603, requires 
agencies to prepare a regulatory flexibility analysis to determine 
whether a regulation will have a significant economic impact on a 
substantial number of small entities. Section 605 of the RFA allows an 
agency to certify a rule in lieu of preparing an analysis if the 
regulation is not expected to have a significant economic impact on a 
substantial number of small entities. Further, under the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 (SBREFA), an 
agency is required to produce compliance guidance for small entities if 
the rule has a significant economic impact. The Small Business 
Administration (SBA) defines a small business as one that is 
``independently owned and operated and which is not dominant in its 
field of operation.'' The definition of small business varies from 
industry to industry to the extent necessary to reflect industry size 
differences properly. An agency must either use the SBA definition for 
a small entity or establish an alternative definition, in this 
instance, for the workforce industry.
    The Department has adopted the SBA definition for the purposes of 
this certification. The Department has notified the Chief Counsel for 
Advocacy, SBA, under the RFA at 5 U.S.C. 605(b), and proposes to 
certify that this rule will not have a significant economic impact on a 
substantial number of small entities. This finding is supported, in 
large measure, by the fact that small entities are already receiving 
financial assistance under the WIOA program and will likely continue to 
do so as articulated in this final rule. Having made these 
determinations and pursuant to section 605(b) of the Regulatory 
Flexibility Act, 5 U.S.C. 605(b), the Department certifies that this 
rule will not have a significant economic impact on a substantial 
number of small entities. In making this determination, the agency used 
the SBA definition of small business, found at 13 CFR 121.201.
Affected Small Entities
    This final rule can be expected to impact small one-stop center 
operators. One-stop operators can be a single entity (public, private, 
or nonprofit) or a consortium of entities. The types of entities that 
might be a one-stop operator include: (1) An institution of higher 
education; (2) an employment service State agency established under the 
Wagner-Peyser Act; (3) a community-based organization, nonprofit 
organization, or workforce intermediary; (4) a private for-profit 
entity; (5) a government agency; (6) a Local Workforce Development 
Board, with the approval of the local CEO and the Governor; or (7) 
another interested organization or entity that can carry out the duties 
of the one-stop operator. Examples include, but are not limited to, a 
local chamber of commerce or other business organization, or a labor 
organization.
Impact on Small Entities
    The Department indicates that transfer payments are a significant 
aspect of this analysis in that the majority of WIOA program cost 
burdens on State and local workforce development boards will be fully 
financed through federal transfer payments to States. The Department 
has highlighted costs that are new to implementation of this final 
rule. Therefore, the Department expects that

[[Page 87211]]

this final rule will have negligible net cost impact on small entities.

H. 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 United States-based companies to 
compete with foreign-based companies in domestic and export markets.

I. Executive Order 13175 (Indian Tribal Governments)

    This rule does not have tribal implications under Executive Order 
13175 that 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.

J. Executive Order 12630 (Government Actions and Interference With 
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.

K. Executive Order 12988 (Civil Justice Reform)

    The rule was drafted and reviewed in accordance with Executive 
Order 12988 and will not unduly burden the federal court system. The 
final 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.

L. 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.

List of Subjects in 29 CFR Part 38

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

Edward C. Hugler,
Acting Assistant Secretary for Administration and Management, U.S. 
Department of Labor.

0
For reasons set forth in the preamble, the Department revises 29 CFR 
part 38 to read as follows:

Title 29--Labor

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

Subpart A--General Provisions
Sec.
38.1 Purpose.
38.2 Applicability.
38.3 Effect on other obligations.
38.4 Definitions.
38.5 General prohibitions on discrimination.
38.6 Specific discriminatory actions prohibited on bases other than 
disability.
38.7 Discrimination prohibited based on sex.
38.8 Discrimination prohibited based on pregnancy.
38.9 Discrimination prohibited based on national origin, including 
limited English proficiency.
38.10 Harassment prohibited.
38.11 Discrimination prohibited based on citizenship status.
38.12 Discrimination prohibited based on disability.
38.13 Accessibility requirements.
38.14 Reasonable accommodations and reasonable modifications for 
individuals with disabilities.
38.15 Communications with individuals with disabilities.
38.16 Service animals.
38.17 Mobility aids and devices.
38.18 Employment practices covered.
38.19 Intimidation and retaliation prohibited.
38.20 Administration of this part.
38.21 Interpretation of this part.
38.22 Delegation of administration and interpretation of this part.
38.23 Coordination with other agencies.
38.24 Effect on other laws and policies.
Subpart B--Recordkeeping and Other Affirmative Obligations of 
Recipients Assurances
38.25 A grant applicant's obligation to provide a written assurance.
38.26 Duration and scope of the assurance.
38.27 Covenants.

Equal Opportunity Officers

38.28 Designation of Equal Opportunity Officers.
38.29 Recipients' obligations regarding Equal Opportunity Officers.
38.30 Requisite skill and authority of Equal Opportunity Officer.
38.31 Equal Opportunity Officer responsibilities.
38.32 Small recipient Equal Opportunity Officer obligations.
38.33 Service provider Equal Opportunity Officer obligations.

Notice and Communication

38.34 Recipients' obligations to disseminate equal opportunity 
notice.
38.35 Equal Opportunity notice/poster.
38.36 Recipients' obligations to publish equal opportunity notice.
38.37 Notice requirement for service providers.
38.38 Publications, broadcasts, and other communications.
38.39 Communication of notice in orientations.
38.40 Affirmative outreach.

Data and Information Collection and Maintenance

38.41 Collection and maintenance of equal opportunity data and other 
information.
38.42 Information to be provided to the Civil Rights Center (CRC) by 
grant applicants and recipients.
38.43 Required maintenance of records by recipients.
38.44 CRC access to information and information sources.
38.45 Confidentiality responsibilities of grant applicants, 
recipients, and the Department.
Subpart C--Governor's Responsibilities To Implement the 
Nondiscrimination and Equal Opportunity Requirements of the Workforce 
Innovation and Opportunity Act (WIOA)
38.50 Subpart application to State Programs.
38.51 Governor's oversight and monitoring responsibilities for State 
Programs.
38.52 Governor's liability for actions of recipients the Governor 
has financially assisted under Title I of WIOA.
38.53 Governor's oversight responsibility regarding recipients' 
recordkeeping.
38.54 Governor's obligations to develop and implement a 
Nondiscrimination Plan.
38.55 Schedule of the Governor's obligations regarding the 
Nondiscrimination Plan.
Subpart D--Compliance Procedures
38.60 Evaluation of compliance.
38.61 Authority to issue subpoenas.

Compliance Reviews

38.62 Authority and procedures for pre-approval compliance reviews.
38.63 Authority and procedures for conducting post-approval 
compliance reviews.
38.64 Procedures for concluding post-approval compliance reviews.
38.65 Authority to monitor the activities of a Governor.
38.66 Notice to Show Cause issued to a recipient.
38.67 Methods by which a recipient may show cause why enforcement 
proceedings should not be instituted.
38.68 Failing to show cause.

Complaint Processing Procedures

38.69 Complaint filing.
38.70 Required contents of complaint.

[[Page 87212]]

38.71 Right to representation.
38.72 Required elements of a recipient's complaint processing 
procedures.
38.73 Responsibility for developing and publishing complaint 
processing procedures for service providers.
38.74 Recipient's obligations when it determines that it has no 
jurisdiction over a complaint.
38.75 If the complainant is dissatisfied after receiving a Notice of 
Final Action.
38.76 If a recipient fails to issue a Notice of Final Action within 
90 days after the complaint was filed.
38.77 Extension of deadline to file complaint.
38.78 Determinations regarding acceptance of complaints.
38.79 When a complaint contains insufficient information.
38.80 Lack of jurisdiction.
38.81 Complaint referral.
38.82 Notice that complaint will not be accepted.
38.83 Notice of complaint acceptance.
38.84 Contacting CRC about a complaint.
38.85 Alternative dispute resolution.

Complaint Determinations

38.86 Notice at conclusion of complaint investigation.
38.87 Director's Initial Determination that reasonable cause exists 
to believe that a violation has taken place.
38.88 Director's Final Determination that no reasonable cause exists 
to believe that a violation has taken place.
38.89 When the recipient fails or refuses to take corrective action 
listed in the Initial Determination.
38.90 Corrective or remedial action that may be imposed when the 
Director finds a violation.
38.91 Post-violation procedures.
38.92 Written assurance.
38.93 Required elements of a conciliation agreement.
38.94 When voluntary compliance cannot be secured.
38.95 Enforcement when voluntary compliance cannot be secured.
38.96 Contents of a Final Determination of a violation.
38.97 Notification of finding of noncompliance.

Breaches of Conciliation Agreements

38.98 Notification of Breach of Conciliation Agreement.
38.99 Contents of Notification of Breach of Conciliation Agreement.
38.100 Notification of an enforcement action under based on breach 
of conciliation agreement.
Subpart E--Federal Procedures for Effecting Compliance
38.110 Enforcement procedures.
38.111 Hearing procedures.
38.112 Initial and final decision procedures.
38.113 Suspension, termination, withholding, denial, or 
discontinuation of financial assistance.
38.114 Distribution of WIOA Title I financial assistance to an 
alternate recipient.
38.115 Post-termination proceedings.


    Authority: 29 U.S.C. 3101 et seq.; 42 U.S.C. 2000d et seq.; 29 
U.S.C. 794; 42 U.S.C. 6101 et seq.; and 20 U.S.C. 1681 et seq.

Subpart A--General Provisions


Sec.  38.1  Purpose.

    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 (29 
U.S.C. 3248). Section 188 prohibits discrimination on the basis of 
race, color, religion, sex, national origin, age, disability, or 
political affiliation or belief, or, for beneficiaries, applicants, and 
participants only, on the basis of citizenship status 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  Applicability.

    (a) Applicability. 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) As provided in Sec.  38.18, the employment practices of a 
recipient and/or one-stop partner, to the extent that the employment is 
in the administration of or in connection with programs and activities 
that are being conducted as a part of WIOA Title I or the one-stop 
delivery system.
    (b) Limitation of application. This part does not apply to:
    (1) Programs or activities that are financially assisted by the 
U.S. Department of Labor (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 the Workforce 
Investment Act of 1998 (WIA));
    (2) Contracts of insurance or guaranty;
    (3) The ultimate beneficiary to a program of Federal financial 
assistance; and
    (4) Federal procurement contracts, with the exception of contracts 
to operate or provide services to Job Corps Centers.


Sec.  38.3  Effect on 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'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 adopted 
by this part. Therefore, recipients must comply with the requirements 
set forth in those regulatory sections as well as the requirements 
listed in this part.
    (c) This part does not invalidate or limit the obligations, 
remedies, rights, and procedures under any Federal law, or the law of 
any State or political subdivision, that provides greater or equal 
protection for the rights of persons as compared to this part:
    (1) 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.
    (2) 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.
    (d) Compliance with this part does not affect, in any way, any 
additional obligations that a recipient may have to comply with 
applicable federal laws and their implementing regulations, such as the 
following:
    (1) Executive Order 11246, as amended;
    (2) Executive Order 13160;
    (3) Sections 503 and 504 of the Rehabilitation Act of 1973, as 
amended (29 U.S.C. 793 and 794);
    (4) The affirmative action provisions of the Vietnam Era Veterans' 
Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);
    (5) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);
    (6) Title VII of the Civil Rights Act of 1964, as amended (42 
U.S.C. 2000e et seq.);
    (7) The Age Discrimination Act of 1975, as amended (42 U.S.C. 
6101);
    (8) The Age Discrimination in Employment Act of 1967, as amended 
(29 U.S.C. 621);

[[Page 87213]]

    (9) Title IX of the Education Amendments of 1972, as amended (Title 
IX) (20 U.S.C. 1681);
    (10) The Americans with Disabilities Act of 1990, as amended (42 
U.S.C. 12101 et seq.); and
    (11) The anti-discrimination provision of the Immigration and 
Nationality Act, as amended (8 U.S.C. 1324b).


Sec.  38.4   Definitions.

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

[[Page 87214]]

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

[[Page 87215]]

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

[[Page 87216]]

the case of an actual impairment) or would be (in the case of a 
perceived impairment), objectively, both ``transitory'' and ``minor.'' 
For purposes of this section, ``transitory'' is defined as lasting or 
expected to last six months or less.
    (iii) Establishing that an individual is ``regarded as having such 
an impairment'' does not, by itself, establish liability. Liability is 
established only when an individual proves that a recipient 
discriminated on the basis of disability within the meaning of federal 
nondiscrimination law and this part.
    (r) 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.
    (s) Employment practices of a recipient include, but are 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.
    (t) Employment-related training means training that allows or 
enables an individual to obtain skills, abilities and/or knowledge that 
are designed to lead to employment.
    (u) Entity means any person, corporation, partnership, joint 
venture, sole proprietorship, unincorporated association, consortium, 
Native American 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.
    (v) 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.
    (w) Federal grantmaking agency means a Federal agency that provides 
financial assistance under any Federal statute.
    (x) 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 recipient for training, or extended directly to such 
participants for payment to that recipient;
    (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.
    (y) 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 recipient for training, or extended 
directly to such participants for payment to that recipient;
    (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.
    (z) 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;

[[Page 87217]]

    (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, 
benefit, service, or training, or of other employees to perform their 
duties; and
    (B) The impact on the facility's ability to carry out its mission.
    (aa) Governor means the chief executive of a State or an outlying 
area, or the Governor's designee.
    (bb) Grant applicant means an entity that submits required 
documentation to the Governor, recipient, or Department, before and as 
a condition of receiving financial assistance under Title I of WIOA.
    (cc) Grantmaking agency means an entity that provides Federal 
financial assistance.
    (dd) 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.
    (ee) 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.
    (ff) Individual with a disability means a person who has a 
disability as previously defined in this section.
    (1) The term ``individual with a disability'' does not include an 
individual on the basis of:
    (i) Transvestism, transsexualism, or gender identity disorders not 
resulting from physical impairments;
    (ii) Pedophilia, exhibitionism, voyeurism, or other sexual behavior 
disorders;
    (iii) Compulsive gambling, kleptomania, or pyromania; or
    (iv) Psychoactive substance use disorders resulting from current 
illegal use of drugs.
    (2) The term ``individual with a disability'' 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 
the illegal use of drugs;
    (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 (ff)(2)(i) or (ii) of 
this section is no longer engaging in the illegal use of drugs.
    (3) With regard to employment, the term ``individual with a 
disability'' does not include any individual who:
    (i) Is an alcoholic if:
    (A) The individual's current use of alcohol prevents such 
individual from performing the duties of the job in question; or
    (B) The individual's employment, by reason of such current alcohol 
abuse, would constitute a direct threat to the individual or the safety 
of others; or
    (ii) Has a currently contagious disease or infection, if:
    (A) That disease or infection prevents the individual from 
performing the essential functions of the job in question; or
    (B) The individual's employment, because of that disease or 
infection, would constitute a direct threat to the health or safety of 
the individual or others.
    (gg) 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.
    (hh) Limited English proficient (LEP) individual means an 
individual whose primary language for communication is not English and 
who has a limited ability to read, speak, write, and/or understand 
English. LEP individuals may be competent in English for certain types 
of communication (e.g., speaking or understanding), but still be LEP 
for other purposes (e.g., reading or writing).
    (ii) LWDA (Local Workforce Development Area) grant recipient means 
the entity that receives WIOA Title I financial assistance for a local 
area directly from the Governor and disburses those funds for workforce 
development activities.
    (jj) National Programs means:
    (1) Job Corps; and
    (2) Programs receiving Federal financial assistance under Title I, 
Subtitle D of WIOA directly from the Department. Such programs include, 
but are not limited to, the Migrant and Seasonal Farmworkers Programs, 
Native American Programs, National Dislocated Worker Grant Programs, 
and YouthBuild programs.
    (kk) 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 and this 
part.
    (ll) Nondiscrimination Plan means the written document and 
supporting documentation developed under Sec.  38.54.
    (mm) 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 (or up to 75 percent as provided in 
WIOA section 134(c)(3)(H)), 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.
    (nn) Other power-driven mobility device means any mobility device 
powered by batteries, fuel, or other engines or by similar means--
whether or not designed primarily for use by individuals with mobility 
disabilities--that is used by individuals with mobility disabilities 
for the purpose of locomotion, including golf cars, electronic personal 
assistance mobility devices (EPAMDs), such as the Segway[supreg] PT, or 
any mobility device designed to operate in areas without defined 
pedestrian routes, but that is not a wheelchair within the meaning of 
this section.

[[Page 87218]]

    (oo) Participant means an individual who has been determined to be 
eligible to participate in, and who is receiving any aid, benefit, 
service, or training under, a program or activity financially assisted 
in whole or in part under Title I of WIOA. ``Participant'' includes, 
but is not limited to, individuals receiving any service(s) under State 
Employment Service programs, and claimants receiving any service(s) or 
benefits under State Unemployment Insurance programs.
    (pp) Participation is considered to commence on the first day, 
following determination of eligibility, on which the participant began 
receiving subsidized aid, benefit, service, or training provided under 
Title I of WIOA.
    (qq) Parties to a hearing means the Department and the grant 
applicant(s), recipient(s), or Governor.
    (rr) 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.
    (ss) Program or activity, see ``WIOA Title I-financially assisted 
program or activity'' in this section.
    (tt) Programmatic accessibility means policies, practices, and 
procedures providing effective and meaningful opportunity for persons 
with disabilities to participate in or benefit from aid, benefits, 
services, and training.
    (uu) Prohibited basis 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, or political affiliation or belief, 
or, for beneficiaries, applicants, and participants only, citizenship 
status or participation in a WIOA Title I-financially assisted program 
or activity.
    (vv) Public entity means:
    (1) Any State or local government; and
    (2) Any department, agency, special purpose district, workforce 
development board, or other instrumentality of a State or States or 
local government.
    (ww) Qualified individual with a disability means:
    (1) With respect to employment, an individual who satisfies the 
requisite skill, experience, education, and other job-related 
requirements of the employment position such individual holds or 
desires, and who, with or without reasonable accommodation, can perform 
the essential functions of such position;
    (2) With respect to aid, benefits, services, or training, an 
individual who, with or without auxiliary aids and services, reasonable 
accommodations, and/or reasonable modifications in policies, practices 
and procedures, meets the essential eligibility requirements for the 
receipt of such aid, benefits, services, or training.
    (xx) Qualified interpreter means an interpreter who is able to 
interpret effectively, accurately, and impartially, either for 
individuals with disabilities or for individuals who are limited 
English proficient. The interpreter must be able to interpret both 
receptively and expressively, using any necessary specialized 
vocabulary, either in-person, through a telephone, a video remote 
interpreting (VRI) service, or via internet, video, or other 
technological methods.
    (1) Qualified interpreter for an individual with a disability 
includes, for example, a sign language interpreter, oral 
transliterator, and cued-language transliterator. When an interpreter 
is provided to a person with a disability, the qualified interpreter 
must be able to sign or otherwise communicate effectively, accurately, 
and impartially, both receptively and expressively, using any necessary 
specialized vocabulary.
    (2) Qualified interpreter for an individual who is limited English 
proficient means an individual who demonstrates expertise and ability 
to communicate information effectively, accurately, and impartially, in 
both English and the other language, and identifies and employs the 
appropriate mode of interpreting (e.g., consecutive, simultaneous, or 
sight translation).
    (yy) 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, services, 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.
    (4) A recipient is required, absent undue hardship, to provide a 
reasonable accommodation to an otherwise qualified individual who meets 
the definition of disability under the ``actual disability'' prong 
(paragraph (q)(1)(i) of this section) or the ``record of'' a disability 
prong (paragraph (q)(1)(ii) of this section), but is not required to 
provide a reasonable accommodation to an individual who meets the 
definition of disability solely under the ``regarded as'' prong 
(paragraph (q)(1)(iii) of this section).
    (zz) Recipient means entity to which financial assistance under 
Title I of WIOA is extended, directly from the Department or through 
the Governor or another recipient (including any successor, assignee, 
or transferee of a recipient). The term excludes any ultimate 
beneficiary of the WIOA Title I-financially assisted program or 
activity. In instances in which a Governor operates a program or 
activity, either directly or through a State agency,

[[Page 87219]]

using discretionary funds apportioned to the Governor under WIOA Title 
I (rather than disbursing the funds to another recipient), the Governor 
is also a recipient. 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. ``Recipient'' includes, 
but is not limited to:
    (1) State-level agencies that administer, or are financed in whole 
or in part with, WIOA Title I funds;
    (2) State Workforce Agencies;
    (3) State and Local Workforce Development Boards;
    (4) LWDA grant recipients;
    (5) One-stop operators;
    (6) Service providers, including eligible training providers;
    (7) On-the-Job Training (OJT) employers;
    (8) Job Corps contractors and center operators;
    (9) Job Corps national training contractors;
    (10) Outreach and admissions agencies, including Job Corps 
contractors that perform these functions;
    (11) Placement agencies, including Job Corps contractors that 
perform these functions;
    (12) Other National Program recipients.
    (aaa) 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.
    (bbb) 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.
    (ccc) Secretary means the Secretary of Labor, U.S. Department of 
Labor, or the Secretary's designee.
    (ddd) Sectarian activities means religious worship or ceremony, or 
sectarian instruction.
    (eee) 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.
    (fff) Service animal means any dog that is individually trained to 
do work or perform tasks for the benefit of an individual with a 
disability, including a physical, sensory, psychiatric, intellectual, 
or other mental disability. Other species of animals, whether wild or 
domestic, trained or untrained, are not service animals for the 
purposes of this definition. The work or tasks performed by a service 
animal must be directly related to the individual's disability. 
Examples of work or tasks include, but are not limited to, assisting 
individuals who are blind or have low vision with navigation and other 
tasks, alerting individuals who are deaf or hard of hearing to the 
presence of people or sounds, providing non-violent protection or 
rescue work, pulling a wheelchair, assisting an individual during a 
seizure, alerting individuals to the presence of allergens, retrieving 
items such as medicine or the telephone, providing physical support and 
assistance with balance and stability to individuals with mobility 
disabilities, and helping persons with psychiatric and neurological 
disabilities by preventing or interrupting impulsive or destructive 
behaviors. The crime deterrent effects of an animal's presence and the 
provision of emotional support, well-being, comfort, or companionship, 
without more, do not constitute work or tasks for the purposes of this 
definition.
    (ggg) Service provider means:
    (1) Any operator of, or provider of aid, benefits, services, or 
training to:
    (i) Any program or activity that receives WIOA Title I financial 
assistance from or through any State or LWDA 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.
    (hhh) 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.
    (iii) Solicitor means the Solicitor of Labor, U.S. Department of 
Labor, or the Solicitor's designee.
    (jjj) 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.
    (kkk) State Programs means programs financially assisted in whole 
or in part under Title I of WIOA in which either:
    (1) The Governor and/or State receives and disburses the grant to 
or through LWDA grant recipients; or
    (2) The Governor retains the grant funds and operates the programs, 
either directly or through a State agency.
    (3) ``State Programs'' also includes State Workforce Agencies, 
State Employment Service agencies, and/or State unemployment 
compensation agencies.
    (lll) State Workforce Agency (SWA) means the State agency that, 
under the State Administrator, contains 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.
    (mmm) 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 Title I.
    (nnn) Terminee means a participant whose participation in the 
program or employee whose employment with the program ends voluntarily 
or involuntarily, during the applicable program year.
    (ooo) 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.
    (ppp) Transferee means a person or entity to whom or to which real 
or personal property, or an interest in such property, is transferred.
    (qqq) Ultimate beneficiary, see the definition of ``beneficiary'' 
in this section.
    (rrr) Undue burden or undue hardship 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 (rrr)(1)(ii) of this section.
    (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;

[[Page 87220]]

    (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 anything more than a de 
minimis cost or operational burden that a particular accommodation 
would impose upon a recipient.
    (sss) Video remote interpreting (VRI) service means an interpreting 
service that uses video conference technology over dedicated lines or 
wireless technology offering high-speed, wide-bandwidth video 
connection that delivers high-quality video images, as provided in 
Sec.  38.15.
    (ttt) Vital information means information, whether written, oral or 
electronic, that is necessary for an individual to understand how to 
obtain any aid, benefit, service, and/or training; necessary for an 
individual to obtain any aid, benefit, service, and/or training; or 
required by law. Examples of documents containing vital information 
include, but are not limited to applications, consent and complaint 
forms; notices of rights and responsibilities; notices advising LEP 
individuals of their rights under this part, including the availability 
of free language assistance; rulebooks; written tests that do not 
assess English language competency, but rather assess competency for a 
particular license, job, or skill for which English proficiency is not 
required; and letters or notices that require a response from the 
beneficiary or applicant, participant, or employee.
    (uuu) Wheelchair means a manually-operated or power-driven device 
designed primarily for use by an individual with a mobility disability 
for the main purpose of indoor and/or outdoor locomotion.
    (vvv) WIOA means the Workforce Innovation and Opportunity Act.
    (www) WIOA Title I financial assistance, see the definition of 
``Financial assistance under WIOA'' in this section.
    (xxx) WIOA Title I-financially assisted program or activity means:
    (1) A program or activity, operated by a recipient and financially 
assisted, in whole or in part, under Title I of WIOA that provides 
either:
    (i) Any aid, benefit, service, or training to individuals; or
    (ii) Facilities for furnishing any aid, benefits, services, or 
training to individuals;
    (2) Aid, benefit, service, 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, benefit, service, or training provided with the aid of any 
non-WIOA Title I financial assistance, 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, benefit, service, or training'' in this section.


Sec.  38.5  General prohibitions on discrimination.

    No individual in the United States may, on the basis of race, 
color, religion, sex, national origin, age, disability, or political 
affiliation or belief, or, for beneficiaries, applicants, and 
participants only, on the basis of 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-financially assisted program or activity.


Sec.  38.6  Specific discriminatory actions prohibited on bases other 
than disability.

    (a) For the purposes of this section, prohibited bases for 
discrimination are race, color, religion, sex, national origin, age, 
and political affiliation and belief, and, for beneficiaries, 
applicants, and participants only, citizenship and 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 basis:
    (1) Deny an individual any aid, benefit, service, or training 
provided under a WIOA Title I-financially assisted program or activity;
    (2) Provide to an individual any aid, benefit, service, or training 
that is different, or is provided in a different manner, from that 
provided to others under a WIOA Title I-financially assisted program or 
activity;
    (3) Subject an individual to segregation or separate treatment in 
any matter related to receipt of any aid, benefit, service, or training 
under a WIOA Title I-financially assisted program or activity;
    (4) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any aid, benefit, 
service, or training under a WIOA Title I-financially assisted program 
or activity;
    (5) Treat an individual differently from others in determining 
whether the individual satisfies any admission, enrollment, 
eligibility, membership, or other requirement or condition for any aid, 
benefit, service, or training provided under a WIOA Title I-financially 
assisted program or activity;
    (6) Deny or limit an individual with respect to any opportunity to 
participate in a WIOA Title I-financially assisted program or activity, 
or afford the individual an opportunity to do so that is different from 
the opportunity afforded others under a WIOA Title I-financially 
assisted 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-financially assisted program or activity; or
    (8) Otherwise limit an individual enjoyment of any right, 
privilege, advantage, or opportunity enjoyed by others receiving any 
WIOA Title I-financially assisted aid, benefit, service, 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 basis prohibited by WIOA Section 188 or this part in providing any 
aid, benefit, service, or training, to registrants, applicants or

[[Page 87221]]

participants in a WIOA Title I-financially assisted 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(rrr)(2).
    (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 basis; 
or
    (ii) Defeating or substantially impairing, on a prohibited basis, 
accomplishment of the objectives of either:
    (A) The WIOA Title I-financially assisted 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, benefit, service, training, or facilities 
that will be provided under any WIOA Title I-financially assisted 
program or activity;
    (ii) The class of individuals to whom such aid, benefit, service, 
training, or facilities will be provided; or
    (iii) The situations in which such aid, benefit, service, training, 
or facilities will be provided.
    (3) Paragraph (d) of this section applies to the administration of 
WIOA Title I-financially assisted programs or activities providing any 
aid, benefit, service, 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 basis:
    (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 Department support, including under 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 683.255 and 683.285. 
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  Discrimination prohibited based on sex.

    (a) In providing any aid, benefit, service, or training under a 
WIOA Title I-financially assisted program or activity, a recipient must 
not directly or through contractual, licensing, or other arrangements, 
discriminate on the basis of sex. An individual may not be excluded 
from participation in, denied the benefits of, or subjected to 
discrimination under any WIOA Title I-financially assisted program or 
activity based on sex. The term sex includes, but is not limited to, 
pregnancy, childbirth, and related medical conditions, transgender 
status, and gender identity.
    (b) Recipients may not make any distinction based on sex in 
providing any aid, benefit, service, or training under a WIOA Title I-
financially assisted program or activity. Such unlawful sex-based 
discriminatory practices include, but are not limited to, the 
following:
    (1) Making a distinction between married and unmarried persons that 
is not applied equally to both sexes;
    (2) Denying individuals of one sex who have children access to any 
aid, benefit, service, or training that is available to individuals of 
another sex who have children;
    (3) Adversely treating unmarried individuals of one sex, but not 
unmarried individuals of another sex, who become parents;
    (4) Distinguishing on the basis of sex in formal or informal job 
training and/or educational programs, other opportunities such as 
networking, mentoring, individual development plans, or on the job 
training opportunities;
    (5) Posting job announcements for jobs that recruit or advertise 
for individuals for certain jobs on the basis of sex;
    (6) Treating an individual adversely because the individual 
identifies with a gender different from that individual's sex assigned 
at birth, or the individual has undergone, is undergoing, or is 
planning to undergo, any processes or procedures designed to facilitate 
the individual's transition to a sex other than the individual's sex 
assigned at birth;
    (7) Denying individuals who are pregnant, who become pregnant, or 
who plan to become pregnant opportunities for or access to any aid, 
benefit, service, or training on the basis of pregnancy (see also Sec.  
38.8);
    (8) Making any facilities associated with WIOA Title I-financially 
assisted program or activities available only to members of one sex, 
except that if the recipient provides restrooms or changing facilities, 
the recipient may provide separate or single-user restrooms or changing 
facilities; and
    (9) Denying individuals access to the restrooms, locker rooms, 
showers, or similar facilities consistent with the gender with which 
they identify.
    (c) A recipient's policies or practices that have the effect of 
discriminating on the basis of sex and that lack a

[[Page 87222]]

substantial legitimate justification constitute sex discrimination in 
violation of WIOA and this part. Such unlawful sex-based discriminatory 
practices include, but are not limited to, the following:
    (1) Height or weight qualifications that lack a substantial 
legitimate justification and that negatively affect women substantially 
more than men.
    (2) Strength, agility, or other physical requirements that lack a 
substantial legitimate justification and that negatively affect women 
substantially more than men.
    (d) Discrimination on the basis of sex stereotypes, such as 
stereotypes about how persons of a particular sex are expected to look, 
speak, or act, is a form of unlawful sex discrimination. Examples of 
sex stereotyping include, but are not limited to:
    (1) Denying an individual access to, or otherwise subjecting the 
individual to adverse treatment in accessing, any aid, benefit, 
service, or training under a WIOA Title I-financially assisted program 
or activity because of that individual's failure to comply with gender 
norms and expectations for dress, appearance and/or behavior, including 
wearing jewelry, make-up, high-heeled shoes, suits, or neckties.
    (2) Harassment or other adverse treatment of a male applicant, 
participant, or beneficiary of a WIOA Title I-financially assisted 
program or activity because he is considered effeminate or 
insufficiently masculine.
    (3) Adverse treatment of an applicant, participant, or beneficiary 
of a WIOA Title I-financially assisted program or activity because of 
the individual's actual or perceived gender identity.
    (4) Adverse treatment of an applicant, participant, or beneficiary 
of a WIOA Title I-financially assisted program or activity based on sex 
stereotypes about caregiver responsibilities. For example, adverse 
treatment of a female participant because of a sex-based assumption 
that she has (or will have) family caretaking responsibilities, and 
that those responsibilities will interfere with her ability to access 
any aid, benefit, service, or training, is discrimination based on sex.
    (5) Adverse treatment of a male applicant, participant, or 
beneficiary of a WIOA Title I-financially assisted program or activity 
because he has taken, or is planning to take, care of his newborn or 
recently adopted or fostered child, based on the sex-stereotyped belief 
that women, and not men, should care for children.
    (6) Denying a woman access to, or otherwise subjecting her to 
adverse treatment in accessing, any aid, benefit, service, or training 
under a WIOA Title I-financially assisted program or activity, based on 
the sex-stereotyped belief that women with children should not work 
long hours, regardless of whether the recipient is acting out of 
hostility or belief that it is acting in her or her children's best 
interest.
    (7) Denying an individual access to, or otherwise subjecting the 
individual to adverse treatment in accessing, any aid, benefit, 
service, or training under a WIOA Title I-financially assisted program 
or activity, based on sex stereotyping including the belief that a 
victim of domestic violence would disrupt the program or activity and/
or may be unable to access any aid, benefit, service, or training.
    (8) Adverse treatment of a woman applicant, participant, or 
beneficiary of a WIOA Title I-financially assisted program or activity 
because she does not dress or talk in a feminine manner.
    (9) Denying an individual access to, failing to provide information 
about, or otherwise subjecting the individual to adverse treatment in 
accessing, any aid, benefit, service, or training under a WIOA Title I-
financially assisted program or activity, because the individual does 
not conform to a sex stereotype about individuals of a particular sex 
working in a specific job, sector, or industry.
    (10) Adverse treatment of an applicant, participant, or beneficiary 
of a WIOA Title I-financially assisted program or activity based on 
sexual orientation where the evidence establishes that the 
discrimination is based on gender stereotypes.


Sec.  38.8   Discrimination prohibited based on pregnancy.

    Discrimination on the basis of pregnancy, childbirth, or related 
medical conditions, including childbearing capacity, is a form of sex 
discrimination and a violation of the nondiscrimination provisions of 
WIOA and this part. Recipients may not treat persons of childbearing 
capacity, or those affected by pregnancy, childbirth, or related 
medical conditions, adversely in accessing any aid, benefit, service, 
or training under a WIOA Title I-financially assisted program or 
activity. In their covered employment practices, recipients must treat 
people of childbearing capacity and those affected by pregnancy, 
childbirth, or related medical conditions the same for all employment-
related purposes, including receipt of benefits under fringe-benefit 
programs, as other persons not so affected but similar in their ability 
or inability to work. Related medical conditions include, but are not 
limited to: Lactation; disorders directly related to pregnancy, such as 
preeclampsia (pregnancy-induced high blood pressure), placenta previa, 
and gestational diabetes; symptoms such as back pain; complications 
requiring bed rest; and the after-effects of a delivery. A pregnancy-
related medical condition may also be a disability. See Sec.  
38.4(q)(3)(ii). Examples of unlawful pregnancy discrimination may 
include:
    (a) Refusing to provide any aid, benefit, service, or training 
under a WIOA Title I-financially assisted program or activity to a 
pregnant individual or an individual of childbearing capacity, or 
otherwise subjecting such individuals to adverse treatment on the basis 
of pregnancy or childbearing capacity;
    (b) Limiting an individual's access to any aid, benefit, service, 
or training under a WIOA Title I-financially assisted program or 
activity based on her pregnancy, or requiring a doctor's note in order 
for a pregnant woman to begin or continue participation while pregnant 
when doctors' notes are not required for participants who are similarly 
situated;
    (c) Denying an individual access to any aid, benefit, service, or 
training under a WIOA Title I-financially assisted program or activity 
or requiring the individual to terminate participation in any WIOA 
Title I-financially assisted program or activity when the individual 
becomes pregnant or has a child; and
    (d) Denying reasonable accommodations or modifications of policies, 
practices, or procedures to a pregnant applicant or participant who is 
temporarily unable to participate in some portions of a WIOA Title I-
financially assisted program or activity because of pregnancy, 
childbirth, and/or related medical conditions, when such accommodations 
or modifications are provided, or are required to be provided, by a 
recipient's policy or by other relevant laws, to other similarly 
situated applicants or participants.


Sec.  38.9  Discrimination prohibited based on national origin, 
including limited English proficiency.

    (a) In providing any aid, benefit, service, or training under a 
WIOA Title I-financially assisted program or activity, a recipient must 
not, directly or through contractual, licensing, or other arrangements, 
discriminate on the basis of national origin, including limited English 
proficiency. An individual must not be excluded from participation in, 
denied the benefits of, or otherwise subjected to discrimination under, 
any WIOA Title I-financially assisted program or activity based on 
national

[[Page 87223]]

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

Appendix to Sec.  38.9--Guidance to Recipients

Recipient Language Assistance Plan (LEP Plan): Promising Practices

    The guidelines in this appendix are consistent with and, in 
large part, derived from existing federal guidance to federal 
financial assistance recipients to take reasonable steps to ensure 
meaningful access by limited English proficient (LEP) individuals.
    Recipients that develop, implement, and periodically revise a 
written language assistance plan are more likely to fulfill their 
obligation of taking reasonable steps to ensure access to programs 
and activities by LEP individuals. The guidelines set forth below 
provide a clear framework for developing a written plan that will 
ensure meaningful access to LEP individuals. Developing and 
implementing a written plan has many benefits, including providing 
the recipient with a roadmap for establishing and documenting 
compliance with nondiscrimination obligations and ensuring that LEP 
beneficiaries receive the necessary assistance to participate in the 
recipient's programs and activities.
    The elements of a successful LEP plan are not fixed. Written LEP 
plans must be tailored to the recipient's specific programs and 
activities. And, over time, plans will need to be revised to reflect 
new recommendations and government guidance; changes in the 
recipient's operations, as well as the recipient's experiences and 
lessons learned; changing demographics; and stakeholder and 
beneficiary feedback. Nonetheless, a recipient that develops an LEP 
plan incorporating the elements identified below will benefit 
greatly in accomplishing its

[[Page 87224]]

mission and providing an equal opportunity for LEP individuals to 
participate in its programs and activities.
    A written LEP plan should identify and describe:

1. The process the recipient will use to determine the language 
needs of individuals who may or may seek to participate in the 
recipient's program and activities (self- or needs-assessment)
2. The results of the assessment, e.g., identifying the LEP 
populations to be served by the recipient
3. Timelines for implementing the written LEP plan
4. All language services to be provided to LEP individuals
5. The manner in which LEP individuals will be advised of available 
services
6. Steps individuals should take to request language assistance
7. The manner in which staff will provide language assistance 
services
8. What steps must be taken to implement the LEP plan, e.g., 
creating or modifying policy documents, employee manuals, employee 
training material, posters, Web sites, outreach material, contracts, 
and electronic and information technologies, applications, or 
adaptations
9. The manner in which staff will be trained
10. Steps the recipient will take to ensure quality control, 
including monitoring implementation, establishing a complaint 
process, timely addressing complaints, and obtaining feedback from 
stakeholders and employees
11. The manner in which the recipient will document the provision of 
language assistance services
12. The schedule for revising the LEP plan
13. The individual(s) assigned to oversee implementation of the plan 
(e.g., LEP Coordinator or Program Manager)
14. Allocation of resources to implement the plan

Illustrative Applications in Recipient Programs and Activities

Unemployment Insurance Program Example

    1. Unemployment insurance programs are recipients covered under 
this rule, and States must take reasonable steps to provide 
meaningful access to LEP individuals served or encountered in their 
unemployment insurance programs and activities. For example, given 
the nature and importance of unemployment insurance, if an LEP 
individual who speaks Urdu seeks information about unemployment 
insurance from a State's telephone call center that assists 
unemployment insurance enrollees and applicants, the State may 
consider the proportion of Urdu-speaking LEP individuals served or 
encountered by the State's unemployment insurance program; the 
frequency with which Urdu-speaking LEP individuals come in contact 
with the State's unemployment insurance program; and the resources 
available to the State and costs in determining how it will provide 
this LEP individual with language assistance. Urdu is a language 
that is rarely, if ever, encountered by this State's UI program. 
Because low-cost commercial language services, such as telephonic 
oral interpretation services, are widely available, the State 
should, at a minimum, provide the Urdu-speaking LEP individual 
telephonic interpretation services to ensure meaningful access to 
unemployment insurance because, even if Urdu is a non-frequently 
encountered, non-English language, low-cost commercial language 
services, such as telephonic oral interpretation services, are 
widely available.

Population Significance as It Pertains to Vital Information

    2. Recipients have some flexibility as to the means to provide 
language assistance services to LEP individuals, as long as they 
take reasonable steps to provide meaningful access to their program 
or activity. For instance, if a recipient provides career services 
to an LEP individual who speaks Tagalog and the individual requests 
a translated brochure on an upcoming job fair, the recipient should 
consider the importance of the information in the brochure, and may 
consider: The proportion of Tagalog-speaking LEP individuals served 
or encountered; the frequency with which Tagalog-speaking LEP 
individuals come in contact with the recipient; and the resources 
available to the recipient. In this instance, the recipient would be 
required to provide a written translation of the brochure for the 
LEP individual if Tagalog were a language spoken by a significant 
number or proportion of the LEP persons in the eligible service 
population and a language frequently encountered in the career 
services program. But if Tagalog is not spoken by a significant 
number or proportion of the population eligible to be served, and 
was not frequently encountered by the career services program, it 
would be reasonable for the recipient to provide an oral summary of 
the brochure's contents in Tagalog.

Training Provider Example Incorporating English Language Learning

    3. Providing English language learning opportunities may be one 
step that a recipient takes in order to take reasonable steps to 
provide an LEP individual meaningful access to its programs or 
activities. For example, John, a Korean-speaking LEP individual, 
learns through the one-stop center about available welding positions 
at ABC Welding, Co. He also learns through the one-stop center about 
upcoming welder training courses offered at XYZ Technical Institute, 
an eligible training provider. John decides to enroll in one of the 
XYZ welding courses. XYZ, which conducts its training courses in 
English, must take reasonable steps to provide John meaningful 
access to the welder training course.
    Recipients may work together to provide meaningful access, but 
remain independently obligated to take reasonable steps to provide 
meaningful access to programs and activities. In this regard, XYZ is 
not required to administer an English language learning class 
itself. Instead, XYZ may coordinate with the one-stop center to 
ensure that John receives appropriate English language learning 
either directly from the one-stop or from another organization that 
provides such English language training. The English language class 
would not be offered to John instead of the training program, but 
John could attend the English language class at the same time as or 
prior to the training program. Whether John takes the English class 
before or concurrently with the welding course will depend on many 
factors including an objective, individualized analysis of John's 
English proficiency relative to the welding course. Regardless of 
how the English language learning is delivered, it must be provided 
at no cost to John.
    In evaluating whether reasonable steps include oral 
interpretation, translation, English language learning, another 
language service, or some combination of these services, XYZ may 
work with the one-stop center to provide meaningful access to John.


Sec.  38.10  Harassment prohibited.

    Harassment of an individual based on race, color, religion, sex, 
national origin, age, disability, or political affiliation or belief, 
or, for beneficiaries, applicants, and participants only, based on 
citizenship status or participation in any WIOA Title I-financially 
assisted program or activity, is a violation of the nondiscrimination 
provisions of WIOA and this part.
    (a) Unwelcome sexual advances, requests for sexual favors, or 
offensive remarks about a person's race, color, religion, sex, national 
origin, age, disability, political affiliation or belief, or 
citizenship or participation, and other unwelcome verbal or physical 
conduct based on one or more of these protected categories constitutes 
unlawful harassment on that basi(e)s when:
    (1) Submission to such conduct is made either explicitly or 
implicitly a term or condition of accessing the aid, benefit, service, 
or training of, or employment in the administration of or in connection 
with, any WIOA Title I-financially assisted program or activity;
    (2) Submission to or rejection of such conduct by an individual is 
used as the basis for limiting that individual's access to any aid, 
benefit, service, training, or employment from, or employment in the 
administration of or in connection with, any WIOA Title I-financially 
assisted program or activity; or
    (3) Such conduct has the purpose or effect of unreasonably 
interfering with an individual's participation in a WIOA Title I-
financially assisted program or activity creating an intimidating, 
hostile or offensive program environment.
    (b) Harassment because of sex includes harassment based on gender 
identity; harassment based on failure to comport with sex stereotypes; 
harassment based on pregnancy, childbirth, and related medical 
conditions; and sex-based harassment that is not sexual in nature but 
that is

[[Page 87225]]

because of sex or where one sex is targeted for the harassment.


Sec.  38.11  Discrimination prohibited based on citizenship status.

    In providing any aid, benefit, service, or training under a WIOA 
Title I-financially assisted program or activity, a recipient must not 
directly or through contractual, licensing, or other arrangements, 
discriminate on the basis of citizenship status. Individuals protected 
under this section include citizens and nationals of the United States, 
lawfully admitted permanent resident aliens, refugees, asylees, and 
parolees, and other immigrants authorized by the Secretary of Homeland 
Security or the Secretary's designee to work in the United States. 
Citizenship discrimination occurs when a recipient maintains and 
enforces policies and procedures that have the purpose or effect of 
discriminating against individual beneficiaries, applicants, and 
participants, 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 immigrants authorized by the 
Secretary of Homeland Security or the Secretary's designee to work in 
the United States.


Sec.  38.12   Discrimination prohibited based on disability.

    (a) In providing any aid, benefit, service, 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 basis of disability:
    (1) Deny a qualified individual with a disability the opportunity 
to participate in or benefit from the aid, benefit, service, or 
training, including meaningful opportunities to seek employment and 
work in competitive integrated settings;
    (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 any 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, benefit, 
service, 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 any aid, benefit, 
service, or training that is as effective as those provided to others, 
and consistent with the requirements of the Rehabilitation Act as 
amended by WIOA, including those provisions that prioritize 
opportunities in competitive integrated employment;
    (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 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, benefit, 
service, 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 basis 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 qualified individuals the benefits of such a program 
or activity; or
    (iii) Subjecting qualified individuals 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 individuals with disabilities 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 any aid, 
benefit, service, training, program, or activity being offered.
    (j) Nothing in this part prohibits a recipient from providing any 
aid, benefit, service, 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

[[Page 87226]]

a program limited by federal law 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 any 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.
    (p) Claims of no disability. Nothing in this part provides the 
basis for a claim that an individual without a disability was subject 
to discrimination because of a lack of disability, including a claim 
that an individual with a disability was granted auxiliary aids or 
services, reasonable modifications, or reasonable accommodations that 
were denied to an individual without a disability.


Sec.  38.13  Accessibility requirements.

    (a) Physical accessibility. No qualified individual with a 
disability may be excluded from participation in, or be denied the 
benefits of a recipient's service, program, or activity or be subjected 
to discrimination by any recipient because a recipient's facilities are 
inaccessible or unusable by individuals with disabilities. Recipients 
that are subject to Title II of the ADA must also ensure that new 
facilities or alterations of facilities that began construction after 
January 26, 1992, comply with the applicable federal accessible design 
standards, such as the ADA Standards for Accessible Design (1991 or 
2010) or the Uniform Federal Accessibility Standards. In addition, 
recipients that receive federal financial assistance must meet their 
accessibility obligations under Section 504 of the Rehabilitation Act 
and the implementing regulations at 29 CFR part 32. Some recipients may 
be subject to additional accessibility requirements under other 
statutory authority, including Title III of the ADA, that is not 
enforced by CRC. As indicated in Sec.  38.3(d)(10), compliance with 
this part does not affect a recipient's obligation to comply with the 
applicable ADA Standards for Accessible Design.
    (b) Programmatic accessibility. All WIOA Title I-financially 
assisted programs and activities must be programmatically accessible, 
which includes providing reasonable accommodations for individuals with 
disabilities, making reasonable modifications to policies, practices, 
and procedures, administering programs in the most integrated setting 
appropriate, communicating with persons with disabilities as 
effectively as with others, and providing appropriate auxiliary aids or 
services, including assistive technology devices and services, where 
necessary to afford individuals with disabilities an equal opportunity 
to participate in, and enjoy the benefits of, the program or activity.


Sec.  38.14  Reasonable accommodations and reasonable modifications for 
individuals with disabilities.

    (a) With regard to any aid, benefit, service, training, and 
employment, a recipient must provide reasonable accommodations 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(rrr)(1).
    (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(rrr)(1). 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, after consultation with an individual with a 
disability (or individuals with disabilities), 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, benefit, service, training, or employment provided by 
the recipient.
    (b) With regard to any aid, benefit, service, training, and 
employment, 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 definition of ``fundamental alteration'' 
in Sec.  38.4(z).
    (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(z). 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.  38.15  Communications with individuals with disabilities.

    (a) General--(1) Communications with individuals with disabilities. 
(i) A recipient must take appropriate steps to ensure that 
communications with individuals with disabilities, such as 
beneficiaries, registrants, applicants, eligible applicants/
registrants, participants, applicants for employment, employees, 
members of the public, and their companions are as effective as 
communications with others.
    (ii) For purposes of this section, ``companion'' means a family 
member, friend, or associate of an individual seeking access to an aid, 
benefit, service, training, program, or activity of a recipient, who, 
along with such individual, is an appropriate person with whom the 
recipient should communicate.

[[Page 87227]]

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


Sec.  38.16  Service animals.

    (a) General. Generally, a recipient shall modify its policies, 
practices, or procedures to permit the use of a service

[[Page 87228]]

animal by an individual with a disability.
    (b) Exceptions. A recipient may ask an individual with a disability 
to remove a service animal from the premises if--
    (1) The animal is out of control and the animal's handler does not 
take effective action to control it; or
    (2) The animal is not housebroken.
    (c) If an animal is properly excluded. If a recipient properly 
excludes a service animal under paragraph (b) of this section, the 
recipient must give the individual with a disability the opportunity to 
participate in the WIOA Title I-financially assisted service, program, 
or activity without having the service animal on the premises.
    (d) Animal under handler's control. A service animal must be under 
the control of its handler. A service animal must have a harness, 
leash, or other tether, unless either the handler is unable because of 
a disability to use a harness, leash, or other tether, or the use of a 
harness, leash, or other tether would interfere with the service 
animal's safe, effective performance of work or tasks, in which case 
the service animal must be otherwise under the handler's control (e.g., 
voice control, signals, or other effective means).
    (e) Care or supervision. A recipient is not responsible for the 
care or supervision of a service animal.
    (f) Inquiries. A recipient must not ask about the nature or extent 
of a person's disability, but may make two inquiries to determine 
whether an animal qualifies as a service animal. A recipient may ask if 
the animal is required because of a disability and what work or task 
the animal has been trained to perform. A recipient must not require 
documentation, such as proof that the animal has been certified, 
trained, or licensed as a service animal. Generally, a recipient may 
not make these inquiries about a service animal when it is readily 
apparent that an animal is trained to do work or perform tasks for an 
individual with a disability (e.g., the dog is observed guiding an 
individual who is blind or has low vision, pulling a person's 
wheelchair, or providing assistance with stability or balance to an 
individual with an observable mobility disability).
    (g) Access to areas of a recipient's facilities.
    (1) In general. Individuals with disabilities must be permitted to 
be accompanied by their service animals in all areas of a recipient's 
facilities where members of the public, participants in services, 
programs or activities, beneficiaries, registrants, applicants, 
eligible applicants/registrants, applicants for employment and 
employees, or invitees, as relevant, are allowed to go.
    (2) Use of service animals in food preparation areas. An employee, 
applicant or beneficiary with a disability who needs to use a service 
animal in a food preparation area must be allowed to do so unless the 
employer recipient, after an individualized assessment, can 
demonstrate, that the presence of the service animal presents a direct 
threat to health or safety that cannot be eliminated or reduced by a 
reasonable accommodation to the employee, applicant or beneficiary.
    (h) Surcharges. A recipient must not ask or require an individual 
with a disability to pay a surcharge because of the individual's 
service animal, even if people accompanied by pets are required to pay 
fees, or to comply with other requirements generally not applicable to 
people without pets. If a recipient normally charges individuals for 
the damage they cause, an individual with a disability may be charged 
for damage caused by the individual's service animal.


Sec.  38.17  Mobility aids and devices.

    (a) Use of wheelchairs and manually-powered mobility aids. A 
recipient must permit individuals with mobility disabilities to use 
wheelchairs and manually-powered mobility aids, such as walkers, 
crutches, canes, braces, or other similar devices designed for use by 
individuals with mobility disabilities, in any areas open to pedestrian 
use.
    (b)(1) Use of other power-driven mobility devices. A recipient must 
make reasonable modifications in its policies, practices, or procedures 
to permit the use of other power-driven mobility devices by individuals 
with mobility disabilities, unless the recipient can demonstrate that 
the class of other power-driven mobility devices cannot be operated in 
accordance with legitimate safety requirements that the recipient has 
adopted.
    (2) Assessment factors. In determining whether a particular other 
power-driven mobility device can be allowed in a specific facility as a 
reasonable modification under paragraph (b)(1) of this section, a 
recipient must consider--
    (i) The type, size, weight, dimensions, and speed of the device;
    (ii) The facility's volume of pedestrian traffic (which may vary at 
different times of the day, week, month, or year);
    (iii) The facility's design and operational characteristics (e.g., 
whether its WIOA Title I-financially assisted service, program, or 
activity is conducted indoors, its square footage, the density and 
placement of stationary devices, and the availability of storage for 
the device, if requested by the user);
    (iv) Whether legitimate safety requirements can be established to 
permit the safe operation of the other power-driven mobility device in 
the specific facility; and
    (v) Whether the use of the other power-driven mobility device 
creates a substantial risk of serious harm to the immediate environment 
or natural or cultural resources, or poses a conflict with Federal land 
management laws.


Sec.  38.18  Employment practices covered.

    (a) Employment practices covered. It is an unlawful employment 
practice to discriminate on the basis of race, color, religion, sex 
(including pregnancy, childbirth, and related medical conditions, 
transgender status, and gender identity), national origin, age, 
disability, or political affiliation or belief 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, where applicable.
    (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) Section 504 of the Rehabilitation Act. 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 adopted by this part. Therefore, 
recipients must comply with the requirements set forth in those 
regulatory sections as well as the requirements listed in this part.
    (e) Employers, employment agencies, or other entities. (1) 
Recipients that are also employers, employment agencies, or other 
entities subject to or covered by Titles I and II of the ADA should be 
aware of obligations imposed by those

[[Page 87229]]

titles. See 29 CFR part 1630 and 28 CFR part 35.
    (2) Recipients that are also employers, employment agencies, or 
other entities subject to or covered by Section 503 of the 
Rehabilitation Act of 1973 (29 U.S.C. 793) must meet their obligations 
imposed by that provision.
    (f) Immigration and Nationality Act. 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) State and local requirements. This section does not preempt 
consistent State and local requirements.


Sec.  38.19   Intimidation and retaliation prohibited.

    (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 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.  38.20  Administration of this part.

    The Civil Rights Center, in the Office of the Assistant Secretary 
for Administration and Management, U.S. Department of Labor, 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.  38.21  Interpretation 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.  38.22  Delegation of administration and interpretation of this 
part.

    (a) The Secretary may from time to time assign to officials of 
other departments or agencies of the Federal 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.  38.23   Coordination with other 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.  38.24   Effect on other laws and policies.

    (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 basis, 
prohibits or limits an individual's eligibility to receive any aid, 
benefit, service, 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 
Title I-financially assisted program or activity 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 basis, 
prohibits or limits an individual's eligibility to participate in any 
WIOA 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 the 
individual's race, color, religion, sex, national origin, age, 
disability, political affiliation or belief, citizenship status, or 
participation in a WIOA Title I-financially assisted program or 
activity.

Subpart B--Recordkeeping and Other Affirmative Obligations of 
Recipients

Assurances


Sec.  38.25  A grant applicant's obligation to provide a written 
assurance.

    (a) Grant applicant's obligation to provide a written assurance. 
(1) Each application for financial assistance, under Title I of WIOA, 
as defined in Sec.  38.4, must include the following assurance:
    (i) 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 has the ability to comply with the nondiscrimination and equal 
opportunity provisions of the following laws and will remain in 
compliance for

[[Page 87230]]

the duration of the award of federal financial assistance:
    (A) 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 (including 
pregnancy, childbirth, and related medical conditions, transgender 
status, and gender identity), national origin (including limited 
English proficiency), age, disability, or political affiliation or 
belief, or against beneficiaries on the basis of either citizenship 
status or participation in any WIOA Title I-financially assisted 
program or activity;
    (B) Title VI of the Civil Rights Act of 1964, as amended, which 
prohibits discrimination on the bases of race, color and national 
origin;
    (C) Section 504 of the Rehabilitation Act of 1973, as amended, 
which prohibits discrimination against qualified individuals with 
disabilities;
    (D) The Age Discrimination Act of 1975, as amended, which prohibits 
discrimination on the basis of age; and
    (E) Title IX of the Education Amendments of 1972, as amended, which 
prohibits discrimination on the basis of sex in educational programs.
    (ii) The grant applicant also assures that, as a recipient of WIOA 
Title I financial assistance, 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 or other arrangement whereby 
Federal financial assistance under Title I of WIOA is made available, 
whether it is explicitly incorporated in such document and whether 
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 in such grants, cooperative agreements, contracts, or 
other arrangements by reference.
    (b) Continuing State Programs. Each Strategic Four-Year State Plan 
submitted by a State to carry out a continuing WIOA financially 
assisted program or activity must provide the text of the assurance in 
paragraph (a)(1) of this section, as a condition to the approval of the 
Four-Year Plan and the extension of any WIOA Title I assistance under 
the Plan. The State also must certify that it has developed and 
maintains a Nondiscrimination Plan under Sec.  38.54.


Sec.  38.26  Duration and scope of the assurance.

    (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.  38.27  Covenants.

    (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.  38.25(a)(1).
    (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.  38.28  Designation of Equal Opportunity Officers.

    (a) Governors. Every Governor must designate an individual as a 
State-level Equal Opportunity Officer (State-level EO Officer), who 
reports directly to the Governor and is responsible for State Program-
wide coordination of compliance with the equal opportunity and 
nondiscrimination requirements in WIOA and this part, including but not 
limited to Sec. Sec.  38.51, 38.53, 38.54, and 38.55 for State 
Programs. The State-level EO Officer must have staff and resources 
sufficient to carry out these requirements.
    (b) All recipients. Every recipient except small recipients and 
service providers, as defined in Sec.  38.4(hhh) and (ggg), must 
designate a recipient-level Equal Opportunity Officer (recipient-level 
EO Officer), who reports directly to the individual in the highest-
level position of authority for the entity that is the recipient, such 
as the Governor, the Administrator of the State Department of 
Employment Services, the Chair of the Local Workforce Development 
Board, the Chief Executive Officer, the Chief Operating Officer, or an 
equivalent official. The recipient-level EO Officer must have staff and 
resources sufficient to carry out the requirements of this section and 
Sec.  38.31. The responsibilities of small recipients and service 
providers are described in Sec. Sec.  38.32 and 38.33.


Sec.  38.29  Recipients' obligations regarding Equal Opportunity 
Officers.

    All recipients have the following obligations related to their EO 
Officers:
    (a) Ensuring that the EO Officer is a senior-level employee 
reporting directly to the individual in the highest-level position of 
authority for the entity that is the recipient, such as the Governor, 
the Administrator of the State Department of Employment Services, the 
Chair of the Local Workforce Development Board, the Chief Executive 
Officer, the Chief Operating Officer, or an equivalent official;
    (b) Designating an individual who can fulfill the responsibilities 
of an EO Officer as described in Sec.  38.31;
    (c) Making the EO Officer's name, position title, address, and 
telephone number (voice and TDD/TTY) public;
    (d) Ensuring that the EO Officer's identity and contact information 
appear on all internal and external communications about the 
recipient's nondiscrimination and equal opportunity programs;
    (e) Assigning sufficient authority, staff, and resources to the EO 
Officer,

[[Page 87231]]

and support of top management, to ensure compliance with the 
nondiscrimination and equal opportunity provisions of WIOA and this 
part; and
    (f) Ensuring that the EO Officer and the EO Officer's staff are 
afforded the opportunity to receive (at the recipient's expense) the 
training necessary and appropriate to maintain competency.


Sec.  38.30  Requisite skill and authority of Equal Opportunity 
Officer.

    The EO Officer must be a senior level employee of the recipient who 
has the knowledge, skills and abilities necessary to fulfill the 
responsibilities competently as described in this subpart. 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, the EO 
Officer 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.  38.31  Equal Opportunity Officer responsibilities.

    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 a recipient's liaison with CRC;
    (b) Monitoring and investigating the recipient's activities, and 
the activities of the entities that receive WIOA Title I-financial 
assistance 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, which 
includes monitoring the collection of data required in this part to 
ensure compliance with the nondiscrimination and equal opportunity 
requirements of WIOA 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.  38.72 through 
38.73, including tracking the discrimination complaints filed against 
the recipient, developing procedures for investigating and resolving 
discrimination complaints filed against the recipient, making sure that 
those procedures are followed, and making available to the public, in 
appropriate languages and formats, the procedures for filing a 
complaint;
    (e) Conducting outreach and education about equal opportunity and 
nondiscrimination requirements consistent with Sec.  38.40 and how an 
individual may file a complaint consistent with Sec.  38.69;
    (f) Undergoing training (at the recipient's expense) to maintain 
competency of the EO Officer and staff, as required by the Director; 
and
    (g) If applicable, overseeing the development and implementation of 
the recipient's Nondiscrimination Plan under Sec.  38.54.


Sec.  38.32   Small recipient Equal Opportunity Officer obligations.

    Although small recipients, as defined in Sec.  38.4(hhh), do not 
need to designate EO Officers who have the full range of 
responsibilities listed in Sec.  38.31, they must designate an 
individual who will be responsible for adopting and publishing 
complaint procedures, and processing complaints, as explained in 
Sec. Sec.  38.72 through 38.75.


Sec.  38.33  Service provider Equal Opportunity Officer obligations.

    Service providers, as defined in Sec.  38.4(ggg), are not required 
to designate an EO 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 LWDA grant 
recipient, as specified in the State's Nondiscrimination Plan.

Notice and Communication


Sec.  38.34  Recipients' obligations to disseminate equal opportunity 
notice.

    (a) A recipient must provide initial and continuing notice as 
defined in Sec.  38.36 that it does not discriminate on any prohibited 
basis. 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 financial assistance 
from the recipient; and
    (6) Members of the public, including those with impaired vision or 
hearing and those with limited English proficiency.
    (b) As provided in Sec.  38.15, the recipient must take appropriate 
steps to ensure that communications with individuals with disabilities 
are as effective as communications with others and that this notice is 
provided in appropriate languages to ensure meaningful access for LEP 
individuals as described in Sec.  38.9.


Sec.  38.35  Equal opportunity notice/poster.

    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 (including pregnancy, childbirth, and related medical conditions, 
sex stereotyping, transgender status, and gender identity), national 
origin (including limited English proficiency), age, disability, or 
political affiliation or belief, or, against any beneficiary of, 
applicant to, or participant in programs financially assisted under 
Title I of the Workforce Innovation and Opportunity Act, on the basis 
of the individual's citizenship status or 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.
    Recipients of federal financial assistance must take reasonable 
steps to ensure that communications with individuals with disabilities 
are as effective as communications with others. This means that, upon 
request and at no cost to the individual, recipients are required to 
provide appropriate auxiliary aids and services to qualified 
individuals with disabilities.

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-

[[Page 87232]]

4123, Washington, DC 20210 or electronically as directed on the CRC Web 
site at www.dol.gov/crc.
    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 may 
file a complaint with CRC before receiving that Notice. 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.  38.36  Recipients' obligations to publish equal opportunity 
notice.

    (a) At a minimum, the Equal Opportunity Notice required by 
Sec. Sec.  38.34 and 38.35 must be:
    (1) Posted prominently, in reasonable numbers and places, in 
available and conspicuous physical locations and on the recipient's Web 
site pages;
    (2) Disseminated in internal memoranda and other written or 
electronic communications with staff;
    (3) Included in employee and participant handbooks or manuals 
regardless of form, including electronic and paper form if both are 
available; and
    (4) Provided to each participant and employee; the notice must be 
made part of each employee's and participant's file. It must be a part 
of both paper and electronic files, if both are maintained.
    (b) The notice must be provided in appropriate formats to 
registrants, applicants, eligible applicants/registrants, applicants 
for employment and employees and participants with visual impairments. 
Where notice has been given in an alternate format to registrants, 
applicants, eligible applicants/registrants, participants, applicants 
for employment and employees with a visual impairment, a record that 
such notice has been given must be made a part of the employee's or 
participant's file.
    (c) The notice must be provided to participants in appropriate 
languages other than English as required in Sec.  38.9.
    (d) The notice required by Sec. Sec.  38.34 and 38.35 must be 
initially published and provided within 90 days of January 3, 2017, or 
of the date this part first applies to the recipient, whichever comes 
later.


Sec.  38.37   Notice requirement for service providers.

    The Governor or the LWDA grant recipient, as determined by the 
Governor and as provided in that State's Nondiscrimination Plan, will 
be responsible for meeting the notice requirement provided in 
Sec. Sec.  38.34 and 38.35 with respect to a State's service providers.


Sec.  38.38   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 voice telephone, the 
materials must also prominently provide the telephone number of the 
text telephone (TTY) or equally effective telecommunications system, 
such as a relay service, videophone, or captioned telephone used by the 
recipient, as required by Sec.  38.15(b).
    (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 basis specified in Sec.  38.5, 
except as such treatment is otherwise permitted under Federal law or 
this part.


Sec.  38.39  Communication of notice in 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, in person or over the internet or using other 
technology, a recipient must include a discussion of rights and 
responsibilities 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. This 
information must be communicated in appropriate languages as required 
in Sec.  38.9 and in formats accessible for individuals with 
disabilities as required in this part and specified in Sec.  38.15.


Sec.  38.40  Affirmative outreach.

    Recipients must take appropriate steps to ensure that they are 
providing equal access to their WIOA Title I-financially assisted 
programs and activities. These steps should involve reasonable efforts 
to include members of the various groups protected by these regulations 
including but not limited to persons of different sexes, various racial 
and ethnic/national origin groups, various religions, individuals with 
limited English proficiency, individuals with disabilities, and 
individuals in different 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.

Data and Information Collection Maintenance


Sec.  38.41  Collection and maintenance of equal opportunity 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

[[Page 87233]]

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, participant, terminee, 
applicant for employment, and employee. Beginning on January 3, 2019, 
each recipient must also record the limited English proficiency and 
preferred language of each applicant, registrant, participant, and 
terminee. 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.
    (3) Any medical or disability-related information obtained about a 
particular individual, including information that could lead to the 
disclosure of a disability, must be collected on separate forms. All 
such information, whether in hard copy, electronic, or both, must be 
maintained in one or more separate files, apart from any other 
information about the individual, and treated as confidential. Whether 
these files are electronic or hard copy, they must be locked or 
otherwise secured (for example, through password protection).
    (i) Knowledge of disability status or medical condition and access 
to information in related files. Persons in the following categories 
may be informed about an individual's disability or medical condition 
and have access to the information in related files under the following 
listed circumstances:
    (A) Program staff who are responsible for documenting eligibility, 
where disability is an eligibility criterion for a program or activity.
    (B) First aid and safety personnel who need access to underlying 
documentation related to a participant's medical condition in an 
emergency.
    (C) Government officials engaged in enforcing this part, any other 
laws administered by the Department, or any other Federal laws. See 
also Sec.  38.44.
    (ii) Knowledge of disability status or medical condition only. 
Supervisors, managers, and other necessary personnel may be informed 
regarding restrictions on the activities of individuals with 
disabilities and regarding reasonable accommodations for such 
individuals.
    (c) Each recipient must maintain, and submit to CRC upon request, a 
log of complaints filed with the recipient that allege discrimination 
on the basis(es) of race, color, religion, sex (including pregnancy, 
childbirth, and related medical conditions, transgender status, and 
gender identity), 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 basis 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 LWDA grant recipient, as provided in the State's 
Nondiscrimination Plan.


Sec.  38.42  Information to be provided to the Civil Rights Center 
(CRC) by grant applicants and recipients.

    In addition to the information which must be collected, maintained, 
and, upon request, submitted to CRC under Sec.  38.41:
    (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 basis of race, color, 
religion, sex (including pregnancy, childbirth, and related medical 
conditions, transgender status, and gender identity), national origin 
(including limited English proficiency), age, disability, or political 
affiliation or belief, or, for beneficiaries, applicants, and 
participants only, on the basis of 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 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 that the Director considers necessary to 
investigate complaints and conduct compliance reviews on bases 
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 
that the Director considers 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.


Sec.  38.43   Required maintenance of records by recipients.

    (a) Each recipient must maintain the following records, whether 
they exist in

[[Page 87234]]

electronic form (including email) or hard copy, 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) Where a discrimination complaint has been filed or compliance 
review initiated, every recipient that possesses or maintains any type 
of hard-copy or electronic record related to the complaint (including 
records that have any relevance to the underlying allegations in the 
complaint, as well as records regarding actions taken on the complaint) 
or to the subject of the compliance review must preserve all records, 
regardless whether hard-copy or electronic, that may be relevant to a 
complaint investigation or compliance review, and maintain those 
records for a period of not less than three years from the date of 
final action related to resolution of the complaint or compliance 
review.


Sec.  38.44  CRC access to information and information sources.

    (a) Each grant applicant and recipient must permit access by the 
Director or the Director's designee during its hours of operation 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, or monitoring activities associated with a State's 
development and implementation of a Nondiscrimination Plan, and for 
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.  38.45  Confidentiality responsibilities of grant applicants, 
recipients, and the Department.

    Grant applicants, recipients and the Department must keep 
confidential to the extent possible, consistent with a fair 
determination of the issues, the identity of any individual who 
furnishes information relating to, or assists in, an investigation or a 
compliance review, including the identity of any individual who files a 
complaint. An individual whose identity is disclosed must be protected 
from retaliation (See Sec.  38.19).

Subpart C--Governor's Responsibilities to Implement the 
Nondiscrimination and Equal Opportunity Requirements of the 
Workforce Innovation and Opportunity Act (WIOA)


Sec.  38.50  Subpart application to State Programs.

    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 
Workforce Agencies (SWA), because the Governor's liability for any 
noncompliance on the part of a SWA cannot be waived.


Sec.  38.51  Governor's oversight and monitoring responsibilities for 
State Programs.

    The Governor is responsible for oversight and monitoring of all 
WIOA Title I-financially assisted State Programs. This responsibility 
includes:
    (a) 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.  38.91(b).
    (b) Annually 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 annual 
monitoring review required by this paragraph must include:
    (1) A statistical or other quantifiable analysis of records and 
data kept by the recipient under Sec.  38.41, including analyses by 
race/ethnicity, sex, limited English proficiency, preferred language, 
age, and disability status;
    (2) An investigation of any significant differences identified in 
paragraph (b)(1) 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
    (3) An assessment to determine whether the recipient has fulfilled 
its administrative obligations under Section 188 of WIOA or this part 
(for example, recordkeeping, notice and communication) and any duties 
assigned to it under the Nondiscrimination Plan.


Sec.  38.52  Governor's liability for actions of recipients the 
Governor has financially assisted under Title I of WIOA.

    (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 implemented a Nondiscrimination Plan, under 
Sec.  38.54, designed to give a 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, the Director 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  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.  38.41 and 
any procedures prescribed by the Director under Sec.  38.41(a). The 
Governor must further ensure that recipients are able to provide data 
and reports in the manner prescribed by the Director.

[[Page 87235]]

Sec.  38.54  Governor's obligations to develop and implement a 
Nondiscrimination Plan.

    (a)(1) Each Governor must establish and implement a 
Nondiscrimination Plan for State Programs as defined in Sec.  
38.4(kkk). In those States in which one agency contains both SWA or 
unemployment insurance and WIOA Title I-financially assisted programs, 
the Governor must develop a combined Nondiscrimination Plan.
    (2) Each Nondiscrimination Plan must be designed to give a 
reasonable guarantee that all recipients will comply, and are 
complying, with the nondiscrimination and equal opportunity provisions 
of WIOA and this part.
    (b) The Nondiscrimination Plan must be:
    (1) In writing, addressing each requirement of paragraph (c) of 
this section with narrative and documentation;
    (2) Reviewed and updated as required in Sec.  38.55; and
    (3) Signed by the Governor.
    (c) At a minimum, each Nondiscrimination Plan must:
    (1) Describe how the State Programs and recipients have satisfied 
the requirements of the following regulations:
    (i) Sections 38.25 through 38.27 (Assurances);
    (ii) Sections 38.28 through 38.33 (Equal Opportunity Officers);
    (iii) Sections 38.34 through 38.39 (Notice and Communication);
    (iv) Sections 38.41 through 38.45 (Data and Information Collection 
and Maintenance);
    (v) Section 38.40 (Affirmative Outreach);
    (vi) Section 38.53 (Governor's Oversight Responsibility Regarding 
Recipients' Recordkeeping);
    (vii) Sections 38.72 and 38.73 (Complaint Processing Procedures); 
and
    (viii) Sections 38.51 and 38.53 (Governor's Oversight and 
Monitoring Responsibilities for State Programs).
    (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 WIOA, 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 review of recipient policy issuances to ensure they are 
nondiscriminatory;
    (iii) 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;
    (iv) Procedures for ensuring that recipients comply with the 
nondiscrimination and equal opportunity requirements of Sec.  38.5 
regarding race, color, religion, sex (including pregnancy, childbirth, 
and related medical conditions, transgender status, and gender 
identity), national origin (including limited English proficiency), 
age, political affiliation or belief, citizenship, or participation in 
any WIOA Title I-financially assisted program or activity;
    (v) Procedures for ensuring that recipients comply with the 
requirements of applicable Federal disability nondiscrimination law, 
including Section 504; Title II of the Americans with Disabilities Act 
of 1990, as amended, if applicable; WIOA Section 188, 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 Nondiscrimination Plan 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 Nondiscrimination Plan;
    (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.  38.29(f) and 
38.31(f), 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.  38.34 through 
38.40.


Sec.  38.55  Schedule of the Governor's obligations regarding the 
Nondiscrimination Plan.

    (a) Within 180 days of either January 3, 2017, or the date on which 
the Governor is required to review and update their Methods of 
Administration as determined by the schedule in Sec.  37.55, whichever 
is later, a Governor must:
    (1) Develop and implement a Nondiscrimination Plan consistent with 
the requirements of this part; and
    (2) Submit a copy of the Nondiscrimination Plan to the Director.
    (b) The Governor must promptly update the Nondiscrimination Plan 
whenever necessary, and submit the changes made to the Director in 
writing at the time that any such updates are made.
    (c) Every two years from the date on which the initial 
Nondiscrimination Plan is submitted to the Director under paragraph 
(a)(2) of this section, the Governor must review the Nondiscrimination 
Plan 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, 
the Governor must certify, in writing, to the Director that the 
Nondiscrimination Plan previously submitted continues in effect.
    (3) Submit a copy of all reports of any monitoring reviews 
conducted by the Governor pursuant to Sec.  38.51(b) since the last 
Nondiscrimination Plan update.

Subpart D--Compliance Procedures


Sec.  38.60  Evaluation of compliance.

    From time to time, the Director may conduct pre-approval compliance 
reviews of grant applicants for WIOA Title I-financial assistance to 
determine the ability to comply with the nondiscrimination and equal 
opportunity provisions of WIOA and this part and may conduct post-
approval compliance reviews of recipients 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

[[Page 87236]]

alleging violations of the nondiscrimination and equal opportunity 
provisions of WIOA and this part.


Sec.  38.61  Authority to issue subpoenas.

    Section 183(c) of WIOA authorizes the issuance of subpoenas. 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. A subpoena may direct the individual named on the subpoena 
to take the following actions:
    (a) To appear:
    (1) Before a designated CRC representative;
    (2) At a designated time and place;
    (b) To give testimony; and/or
    (c) To produce documentary evidence.

Compliance Reviews


Sec.  38.62  Authority and procedures for 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.  38.25, 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) When awarding financial assistance under Title I of WIOA, 
departmental grantmaking agencies must consult with the Director to 
review whether the CRC has issued a Notice to Show Cause under Sec.  
38.66(b) or a Final Determination against an applicant that has been 
identified as a probable awardee.
    (c) The grantmaking agency will consider, in consultation with the 
Director, the information referenced in paragraph (b) of this section, 
along with any other information provided by the Director in 
determining whether to award a grant or grants. Departmental 
grantmaking agencies must consider refraining from awarding new grants 
to applicants or must consider including special terms in the grant 
agreement for entities named by the Director as described in paragraph 
(b) of this section. Special terms will not be lifted until a 
compliance review has been conducted by the Director, and the Director 
has approved a determination that the applicant is likely to comply 
with the nondiscrimination and equal opportunity requirements of WIOA 
and this part.
    (d) Where the Director determines that the grant applicant for 
Federal financial assistance under Title I of WIOA, if financially 
assisted, is not likely to 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 Sec.  38.90 
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.  38.91 
and 38.93; and
    (iv) The opportunity to engage in voluntary compliance 
negotiations.
    (e) If a grant applicant has agreed to certain remedial or 
corrective actions in order to receive WIOA Title I 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.  38.95 through 38.97.


Sec.  38.63  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.  38.95 and 38.96, to make a 
documentary or other written 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   Procedures for concluding post-approval compliance 
reviews.

    (a) Where, as the result of a post-approval review, the Director 
has made a finding of noncompliance, the Director 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.  38.90;
    (3) Whether it will be necessary for the recipient to enter into a 
written assurance or Conciliation Agreement, as provided in Sec. Sec.  
38.92 and 38.93; 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  Authority to monitor the activities of a Governor.

    (a) The Director may periodically review the adequacy of the 
Nondiscrimination Plan established by a Governor, as well as the 
adequacy of the Governor's performance under the Nondiscrimination 
Plan, to determine compliance with the requirements of Sec. Sec.  38.50 
through 38.55. The Director may review the Nondiscrimination Plan 
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 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.
    (c) Where the Director determines that the Governor has not 
complied with the oversight and monitoring responsibilities set forth 
in the nondiscrimination and equal opportunity requirements of WIOA or 
this part, the Director may:
    (1) Issue a Letter of Findings. The Letter of Findings must advise 
the Governor, in writing, of:
    (i) The preliminary findings of the review;

[[Page 87237]]

    (ii) The proposed remedial or corrective action under Sec.  38. 90 
and the time within which the remedial or corrective action should be 
completed;
    (iii) Whether it will be necessary for the Governor to enter into a 
conciliation agreement as described in Sec. Sec.  38.91 and 38.93; and
    (iv) The opportunity to engage in voluntary compliance 
negotiations.
    (2) If a Governor refuses or fails to take remedial or corrective 
actions or to enter into a conciliation agreement, the Director may 
follow the procedures outlined in Sec. Sec.  38.89, 38.90, and 38.91.


Sec.  38.66  Notice to Show Cause issued to a recipient.

    (a) 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:
    (1) Submit requested information, records, and/or data within the 
timeframe specified in a Notification Letter issued pursuant to Sec.  
38.63;
    (2) 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
    (3) Provide CRC access in a timely manner to a recipient's 
premises, records, or employees during a compliance review or complaint 
investigation, as required in Sec.  38.42(c).
    (b) The Director may issue a Notice to Show Cause to a recipient 
after a Letter of Findings and/or an Initial Determination has been 
issued, and after a reasonable period of time has passed within which 
the recipient refuses to negotiate a conciliation agreement with the 
Director regarding the violation(s).
    (c) 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.
    (d) A Notice to Show Cause must give the recipient 30 days from 
receipt of the Notice to show cause why enforcement proceedings under 
the nondiscrimination and equal opportunity provisions of WIOA or this 
part should not be instituted.


Sec.  38.67  Methods by which a recipient may 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 Conciliation Agreement, under Sec. Sec.  
38.91 and 38.93;
    (b) Demonstrating that CRC does not have jurisdiction; or
    (c) Demonstrating that the violation alleged by CRC did not occur.


Sec.  38.68  Failing to show cause.

    If the recipient fails to show cause why enforcement proceedings 
should not be initiated, the Director may follow the enforcement 
procedures outlined in Sec.  38.95.

Complaint Processing Procedures


Sec.  38.69   Complaint filing.

    (a) Any person or the person's representative who believes that any 
of the following circumstances exist may file a written complaint:
    (1) A person, or any specific class of individuals, has been or is 
being discriminated against on the basis of race, color, religion, sex 
(including pregnancy, childbirth, and related medical conditions, 
transgender status, and gender identity), national origin (including 
limited English proficiency), age, disability, political affiliation or 
belief, citizenship status, or participation in any WIOA Title I-
financially assisted program or activity as prohibited by WIOA or this 
part.
    (2) Either the person, or any specific class of individuals, has 
been or is being retaliated against as described in Sec.  38.19.
    (b) A person or the person's representative may file a complaint 
with either the recipient's EO Officer (or the person the recipient has 
designated for this purpose) or the Director. Complaints filed with the 
Director should be sent to the address listed in the notice or filed 
electronically as described in the notice in Sec.  38.35.
    (c) Generally, a complaint must be filed within 180 days of the 
alleged discrimination or retaliation. 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.  38.70  Required contents of complaint.

    Each complaint must be filed in writing, either electronically or 
in hard copy, and must contain the following information:
    (a) The complainant's name, mailing address, and, if available, 
email 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 indicate noncompliance with 
any of the nondiscrimination and equal opportunity provisions of WIOA 
or this part.
    (d) The written or electronic signature of the complainant or the 
written or electronic signature of the complainant's representative.
    (e) 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. The forms 
are available electronically on CRC's Web site, and in hard copy via 
postal mail upon request. The latter requests may be sent to CRC at the 
address listed in the notice contained in Sec.  38.35.


Sec.  38.71  Right to representation.

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


Sec.  38.72  Required elements of a recipient's complaint processing 
procedures.

    (a) The procedures that a recipient adopts and publishes for 
processing complaints permitted under this part and WIOA Section 188 
must state that the recipient will issue a written Notice of Final 
Action on 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

[[Page 87238]]

    (ii) Notice that the complainant has the right to be represented in 
the complaint process;
    (iii) Notice of rights contained in Sec.  38.35; and
    (iv) Notice that the complainant has the right to request and 
receive, at no cost, auxiliary aids and services, language assistance 
services, and that this notice will be translated into the non-English 
languages as required in Sec. Sec.  38.4(h) and (i), 38.34, and 38.36.
    (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 received if the complainant 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 complainant may attempt ADR at any time after the 
complainant has filed a written complaint with the recipient, but 
before a Notice of Final Action has been issued.
    (2) The choice whether to use ADR or the customary process rests 
with the complainant.
    (3) A party to any agreement reached under ADR may notify the 
Director in the event the agreement is breached. In such circumstances, 
the following rules will apply:
    (i) The non-breaching party may notify with the Director within 30 
days of the date on which the non-breaching party learns of the alleged 
breach; and
    (ii) The Director must evaluate the circumstances to determine 
whether the agreement has been breached. If the Director determines 
that the agreement has been breached, the complaint will be reinstated 
and processed in accordance with the recipient's procedures.
    (4) If the parties do not reach an agreement under ADR, the 
complainant may file a complaint with the Director as described in 
Sec. Sec.  38.69 through 38.71.


Sec.  38.73  Responsibility for developing and publishing complaint 
processing procedures for service providers.

    The Governor or the LWDA grant recipient, as provided in the 
State's Nondiscrimination Plan, must develop and publish, on behalf of 
its service providers, the complaint processing procedures required in 
Sec.  38.72. The service providers must then follow those procedures.


Sec.  38.74  Recipient's obligations when it determines that it has no 
jurisdiction over a complaint.

    If a recipient determines that it does not have jurisdiction over a 
complaint, it must notify the complainant, in writing within five 
business days of making such determination. 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.  38.75  If the complainant is dissatisfied after receiving a 
Notice of Final Action.

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


Sec.  38.76  If a recipient fails to issue a Notice of Final Action 
within 90 days after the 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 the complainant's 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.  38.77  Extension of deadline to file complaint.

    (a) The Director may extend the 30-day time limit for filing a 
complaint:
    (1) If a 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.  38.72(b)(5); 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.  38.78  Determinations regarding acceptance of complaints.

    The Director must decide 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.  38.79   When a complaint contains insufficient information.

    (a) If a complaint does not contain enough information to identify 
the respondent or the basis of the alleged discrimination, the 
timeliness of the complaint, or the apparent merit of the complaint, 
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, the Director 
must send written notice to the complainant's last known address, email 
address (or another known method of contacting the complainant in 
writing).


Sec.  38.80   Lack of jurisdiction.

    If CRC does not have jurisdiction over a complaint, the Director 
must:
    (a) Notify the complainant in writing 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.  38.81  Complaint referral.

    The Director refers complaints to other agencies in the following 
circumstances:
    (a) Where the complaint alleges discrimination based on age, and 
the

[[Page 87239]]

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 in paragraphs (b)(1) 
through (4) of this section, 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, the 
Director must notify the complainant and the respondent about the 
referral.


Sec.  38.82  Notice that 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 
the Director's reasons for making that determination.


Sec.  38.83   Notice of complaint acceptance.

    If the Director accepts the complaint for resolution, the Director 
must notify in writing 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.  38.84  Contacting CRC about a complaint.

    Both the complainant and the respondent, or their representative, 
may contact CRC for information about the complaint. The Director will 
determine what information, if any, about the complaint will be 
released.


Sec.  38.85  Alternative dispute resolution.

    The Director may offer the option of alternative dispute resolution 
(ADR) of the complaint filed with CRC. In such circumstances, the 
following rules apply:
    (a) ADR is voluntary; consent must be given by the complainant and 
respondent before the ADR process will proceed.
    (b) The ADR will be conducted under the guidance of the Director.
    (c) ADR may take place at any time after a complaint has been filed 
under Sec.  38.69, as deemed appropriate by the Director.
    (d) CRC will not suspend its investigation and complaint processes 
during ADR.

Complaint Determinations


Sec.  38.86  Notice at conclusion of complaint investigation.

    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 as provided in Sec. Sec.  
38.87 and 38.88.


Sec.  38.87  Director's Initial Determination that reasonable cause 
exists 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 the Director 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.  38.90;
    (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.  38.91 through 38.93; and
    (e) The opportunity to engage in voluntary compliance negotiations.


Sec.  38.88  Director's Final Determination that no reasonable cause 
exists 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, the Director must issue a 
Final Determination under Sec.  38.96. The Final Determination 
represents the Department's final agency action on the complaint.


Sec.  38.89  When the recipient fails or refuses to take the corrective 
action listed in the Initial Determination.

    Under such circumstances, following a complaint investigation or 
compliance review, the Department may take the actions described in 
Sec.  38.95.


Sec.  38.90   Corrective or remedial action that may be imposed when 
the Director finds a violation.

    (a) A Letter of Findings, Notice to Show Cause, or Initial 
Determination, issued under Sec.  38.62 or Sec.  38.64, Sec. Sec.  
38.66 and 38.67, or Sec.  38.87, 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 may 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.

[[Page 87240]]

    (c) Monetary relief may not be paid from Federal funds.


Sec.  38.91  Post-violation procedures.

    (a) Violations at the 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, the Director must notify the Governor of that State through the 
issuance of a Letter of Findings, Notice to Show Cause, or Initial 
Determination, as appropriate, under Sec.  38.62 or Sec.  38.64, 
Sec. Sec.  38.66 and 38.67, or Sec.  38.87, 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 or Conciliation Agreement.
    (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.  
38.64, Sec. Sec.  38.66 and 38.67, or Sec.  38.87, respectively.
    (1) Such issuance may:
    (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.  38.92; or
    (B) Entering into a written Conciliation Agreement under Sec.  
38.93.
    (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, the Governor must submit to the 
Director for approval, as applicable:
    (i) Written assurance that the required action has been taken, as 
described in Sec.  38.92; or
    (ii) A copy of the Conciliation Agreement, as described in Sec.  
38.93.
    (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 applicable requirements 
provided in Sec. Sec.  38.92 and 38.93.
    (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, the Director 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.  
38.63, Sec. Sec.  38.66 and 38.67, or Sec.  38.87, respectively. The 
Director may secure compliance with the nondiscrimination and equal 
opportunities provisions of WIOA through, among other means, the 
execution of a written assurance or conciliation agreement under Sec.  
38.92 or Sec.  38.93.


Sec.  38.92  Written assurance.

    A written assurance is the resolution document that may be used 
when the Director determines that a recipient has, within fifteen 
business days after receipt of the Letter of Findings or Initial 
Determination identifying the violations, taken all corrective actions 
to remedy the violations specified in those documents.


Sec.  38.93  Required elements of a conciliation agreement.

    A conciliation agreement must:
    (a) Be in writing;
    (b) Address the legal and contractual obligations of the recipient;
    (c) Address each cited violation;
    (d) Specify the corrective or remedial action to be taken within a 
stated period of time to come into compliance;
    (e) Provide for periodic reporting on the status of the corrective 
and remedial action;
    (f) State that the violation(s) will not recur;
    (g) State that nothing in the agreement will prohibit CRC from 
sending the agreement to the complainant, making it available to the 
public, or posting it on the CRC or recipient's Web site;
    (h) State that, in any proceeding involving an alleged violation of 
the conciliation agreement, CRC may seek enforcement of the agreement 
itself and shall not be required to present proof of the underlying 
violations resolved by the agreement; and
    (i) Provide for enforcement for a breach of the agreement.


Sec.  38.94  When voluntary compliance cannot be secured.

    The Director will conclude that compliance cannot be secured by 
voluntary means under the following circumstances:
    (a) The Governor, grant applicant or recipient fails to 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.  38.91(b)(1)(ii) and the 
Director either:
    (1) Has not been notified under Sec.  38.91(b)(3) that the 
Governor, grant applicant, or recipient has agreed to voluntary 
compliance;
    (2) Has disapproved a written assurance or Conciliation Agreement, 
under Sec.  38.91(b)(4); or
    (3) Has received notice from the Governor, under Sec.  38.91(b)(2), 
that the grant applicant or recipient will not comply voluntarily.


Sec.  38.95   Enforcement when voluntary compliance cannot be secured.

    If the Director concludes that compliance cannot be secured by 
voluntary means, the Director 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.  38.96  Contents of a Final Determination of a violation.

    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

[[Page 87241]]

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 financial assistance may be terminated, 
discontinued, or withheld in whole or in part, or its application for 
such financial assistance 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 37.115; and
    (h) A determination of the Governor's liability, if any, under 
Sec.  38.52.


Sec.  38.97  Notification of 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.  38.98   Notification of Breach of Conciliation Agreement.

    (a) 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.
    (b) 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.  38.99  Contents of Notification of Breach of Conciliation 
Agreement.

    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.  38.100   Notification of an enforcement action based on breach of 
conciliation agreement.

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

Subpart E--Federal Procedures for Effecting Compliance


Sec.  38.110   Enforcement procedures.

    (a) Sanctions; judicial enforcement. If compliance has not been 
achieved after issuance of a Final Determination under Sec. Sec.  38.95 
and 38.96, or a Notification of Breach of Conciliation Agreement under 
Sec. Sec.  38.98 through 38.100, 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, which may include 
seeking injunctive relief.
    (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   Hearing procedures.

    (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 and 
Labor-Management Division, Room N-2474, 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

[[Page 87242]]

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.
    (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) Judicial process. 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 Rules of Evidence issued by the 
Department of Labor's Office of Administrative Law Judges, 29 CFR part 
18.


Sec.  38.112  Initial and final decision procedures.

    (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 Department unless exceptions are filed by a party or, in the 
absence of exceptions, the Administrative Review Board serves notice 
that it will review the decision.
    (i) Exceptions. A party dissatisfied with the initial decision and 
order may, within 45 days of receipt, file with the Administrative 
Review Board 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) Transmittal of record and initial decision by Administrative 
Law Judge. Upon receipt of exceptions, the Administrative Law Judge 
must index and forward the record and the initial decision and order to 
the Administrative Review Board within three days of such receipt.
    (iii) Specificity required when filing exceptions. A party filing 
exceptions must specifically identify the finding or conclusion to 
which exception is taken.
    (iv) Reply. 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. Requests for extensions for the filing 
of exceptions or replies must be received by the Administrative Review 
Board no later than 3 days before the exceptions or replies are due.
    (vi) Review by Administrative Review Board on its own motion. If no 
exceptions are filed, the Administrative Review Board may, within 30 
days of the expiration of the time for filing exceptions, on its own 
motion serve notice on the parties that it will review the decision.
    (vii) Final Decision and Order without review by Administrative 
Review Board. (A) Where exceptions have been filed, the initial 
decision and order of the Administrative Law Judge becomes the Final 
Decision and Order unless the Administrative Review Board, within 30 
days of the expiration of the time for filing exceptions and replies, 
has 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 unless the Administrative Review Board has served notice on the 
parties that it will review the decision, as provided in paragraph 
(b)(1)(vi) of this section.
    (viii) Final Decision and Order after review by Administrative 
Review Board. Any case reviewed by the Administrative Review Board 
under this paragraph must be decided within 180 days of the 
notification of such review. If the Administrative Review Board 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.
    (2) Final Decision where a hearing is waived. (i) If, after 
issuance of a Final Determination under Sec.  38.95 or Notification of 
Breach of Conciliation Agreement under Sec.  38.98, 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.
    (ii) When a Final Determination or Notification of Breach of 
Conciliation Agreement becomes the Final Decision, the Administrative 
Review Board 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's, Governor's, or recipient's failure 
to comply with the required corrective and/or remedial actions, or the 
Secretary may refer 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  Suspension, termination, withholding, denial, or 
discontinuation of 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.  38.95 
or Notification of Breach of Conciliation Agreement under Sec.  38.98;
    (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 Administrative Review 
Board, the Administrative Law Judge's decision and order has become the 
Final Agency Decision, or the Final Determination or Notification of 
Conciliation Agreement has been deemed the Final Agency Decision, 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  Distribution of 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

[[Page 87243]]

    (b) The ability to achieve the goals of the nondiscrimination and 
equal opportunity provisions of WIOA.


Sec.  38.115  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, the Director 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 Administrative Review Board, 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 and Labor-Management Division.
    (4) The Director may file a response to the petition within 14 
days.
    (5) The Administrative Review Board must issue the final agency 
decision denying or granting the recipient's or grant applicant's 
request for restoration to eligibility.

[FR Doc. 2016-27737 Filed 12-1-16; 8:45 am]
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