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Pt. 37
service, or benefit to members of the
other sex.
§36.540 Advertising.
A recipient shall not in any advertising related to employment indicate
preference, limitation, specification, or
discrimination based on sex unless sex
is a bona fide occupational qualification for the particular job in question.
§36.545 Pre-employment inquiries.
(a) Marital status. A recipient shall
not make pre-employment inquiry as
to the marital status of an applicant
for employment, including whether
such applicant is ‘‘Miss’’ or ‘‘Mrs.’’
(b) Sex. A recipient may make preemployment inquiry as to the sex of an
applicant for employment, but only if
such inquiry is made equally of such
applicants of both sexes and if the results of such inquiry are not used in
connection with discrimination prohibited by these Title IX regulations.
§36.550 Sex as a bona fide occupational qualification.
A recipient may take action otherwise prohibited by §§36.500 through
36.550 provided it is shown that sex is a
bona fide occupational qualification for
that action, such that consideration of
sex with regard to such action is essential to successful operation of the employment function concerned. A recipient shall not take action pursuant to
this section that is based upon alleged
comparative employment characteristics or stereotyped characterizations of
one or the other sex, or upon preference based on sex of the recipient,
employees, students, or other persons,
but nothing contained in this section
shall prevent a recipient from considering an employee’s sex in relation to
employment in a locker room or toilet
facility used only by members of one
sex.
Subpart F—Procedures
§36.600 Notice of covered programs.
Within 60 days of September 29, 2000,
each Federal agency that awards Federal financial assistance shall publish
in the FEDERAL REGISTER a notice of
the programs covered by these Title IX
regulations. Each such Federal agency
shall periodically republish the notice
of covered programs to reflect changes
in covered programs. Copies of this notice also shall be made available upon
request to the Federal agency’s office
that enforces Title IX.
§ 36.605 Enforcement procedures.
The investigative, compliance, and
enforcement procedural provisions of
Title VI of the Civil Rights Act of 1964
(42 U.S.C. 2000d) (‘‘Title VI’’) are hereby
adopted and applied to these Title IX
regulations. These procedures may be
found at 29 CFR 31.5, 31.7 through 31.11.
[65 FR 52881, Aug. 30, 2000]
§ 36.610
[Reserved]
PART 37—IMPLEMENTATION OF THE
NONDISCRIMINATION
AND
EQUAL OPPORTUNITY PROVISIONS OF THE WORKFORCE INVESTMENT ACT OF 1998 (WIA)
Subpart A—General Provisions
Sec.
37.1 What is the purpose of this part?
37.2 To whom does this part apply, and what
is the scope of this part?
37.3 How does this part affect a recipient’s
other obligations?
37.4 What definitions apply to this part?
37.5 What forms of discrimination are prohibited by this part?
37.6 What specific discriminatory actions,
based on prohibited grounds other than
disability, are prohibited by this part?
37.7 What specific discriminatory actions
based on disability are prohibited by this
part?
37.8 What are a recipient’s responsibilities
regarding reasonable accommodation
and reasonable modification for individuals with disabilities?
37.9 What are a recipient’s responsibilities
to communicate with individuals with
disabilities?
37.10 To what extent are a recipient’s employment practices covered by this part?
37.11 To what extent are intimidation and
retaliation prohibited by this part?
37.12 What Department of Labor office is responsible for administering this part?
37.13 Who is responsible for providing interpretations of this part?
37.14 Under what circumstances may the
Secretary delegate the responsibilities of
this part?
37.15 What are the Director’s responsibilities to coordinate with other civil rights
agencies?
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Pt. 37
29 CFR Subtitle A (7–1–01 Edition)
37.16 What is this part’s effect on a recipient’s obligations under other laws, and
what limitations apply?
Subpart B—Recordkeeping and Other
Affirmative Obligations of Recipients
ASSURANCES
37.20 What is a grant applicant’s obligation
to provide a written assurance?
37.21 How long will the recipient’s obligation under the assurance last, and how
broad is the obligation?
37.22 How must covenants be used in connection with this part?
EQUAL OPPORTUNITY OFFICERS
37.23 Who must designate an Equal Opportunity Officer?
37.24 Who is eligible to serve as an Equal
Opportunity Officer?
37.25 What are the responsibilities of an
Equal Opportunity Officer?
37.26 What are a recipient’s obligations relating to the Equal Opportunity Officer?
37.27 What are the obligations of small recipients regarding Equal Opportunity Officers?
37.28 What are the obligations of service
providers regarding Equal Opportunity
Officers?
NOTICE AND COMMUNICATION
37.29 What are a recipient’s obligations to
disseminate its equal opportunity policy?
37.30 What specific wording must the notice
contain?
37.31 Where must the notice required by
§§ 37.29 and 37.30 be published?
37.32 When must the notice be provided?
37.33 Who is responsible for meeting the notice requirement with respect to service
providers?
37.34 What type of notice must a recipient
include in publications, broadcasts, and
other communications?
37.35 What are a recipient’s responsibilities
to provide services and information in
languages other than English?
37.36 What responsibilities does a recipient
have to communicate information during
orientations?
DATA AND INFORMATION COLLECTION AND
MAINTENANCE
37.37 What are a recipient’s responsibilities
to collect and maintain data and other
information?
37.38 What information must grant applicants and recipients provide to CRC?
37.39 How long must grant applicants and
recipients maintain the records required
under this part?
37.40 What access to sources of information
must grant applicants and recipients provide the Director?
37.41 What responsibilities do grant applicants, recipients, and the Department
have to maintain the confidentiality of
the information collected?
37.42 What are a recipient’s responsibilities
under this part to provide universal access to WIA Title I-financially assisted
programs and activities?
Subpart C—Governor’s Responsibilities to
Implement the Nondiscrimination and
Equal Opportunity Requirements of
WIA
37.50 To whom does this subpart apply?
37.51 What are a Governor’s oversight responsibilities?
37.52 To what extent may a Governor be liable for the actions of a recipient he or
she has financially assisted under WIA
Title I?
37.53 What are a Governor’s oversight responsibilities regarding recipients’ recordkeeping?
37.54 That are a Governor’s obligations to
develop and maintain a Methods of Administration?
37.55 When must the Governor carry out his
or her obligations with regard to the
Methods of Administration?
Subpart D—Compliance Procedures
37.60 How does the Director evaluate compliance with the nondiscrimination and
equal opportunity provisions of WIA and
this part?
37.61 Is there authority to issue subpoenas?
COMPLIANCE REVIEWS
37.62 What are the authority and procedures
for conducting pre-approval compliance
reviews?
37.63 What are the authority and procedures
for conducting post-approval compliance
reviews?
37.64 What procedures must the Director
follow when CRC has completed a postapproval compliance review?
37.65 What is the Director’s authority to
monitor the activities of a Governor?
37.66 What happens if a recipient fails to
submit requested data, records, and/or
information, or fails to provide CRC with
the required access?
37.67 What information must a Notice to
Show Cause contain?
37.68 How may a recipient show cause why
enforcement proceedings should not be
instituted?
37.69 What happens if a recipient fails to
show cause?
COMPLAINT PROCESSING PROCEDURES
37.70 Who may file a complaint concerning
discrimination connected with WIA Title
I?
37.71 Where may a complaint be filed?
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Office of the Secretary of Labor
Pt. 37
37.72 When must a complaint be filed?
37.73 What information must a complaint
contain?
37.74 Are there any forms that a complainant may use to file a complaint?
37.75 Is there a right of representation in
the complaint process?
37.76 What are the required elements of a
recipient’s
discrimination
complaint
processing procedures?
37.77 Who is responsible for developing and
publishing complaint processing procedures for service providers?
37.78 Does a recipient have any special obligations in cases in which the recipient
determines that it has no jurisdiction
over a complaint?
37.79 If, before the 90-day period has expired, a recipient issues a Notice of Final
Action with which the complainant is
dissatisfied, how long does the complainant have to file a complaint with the Director?
37.80 What happens if a recipient fails to
issue a Notice of Final Action within 90
days of the date on which a complaint
was filed?
37.81 Are there any circumstances under
which the Director may extend the time
limit for filing a complaint with him or
her?
37.82 Does the Director accept every complaint for resolution?
37.83 What happens if a complaint does not
contain enough information?
37.84 What happens if CRC does not have jurisdiction over a complaint?
37.85 Are there any other circumstances in
which the Director will send a complaint
to another authority?
37.86 What must the Director do if he or she
determines that a complaint will not be
accepted?
37.87 What must the Director do if he or she
determines that a complaint will be accepted?
37.88 Who may contact CRC about a complaint?
37.89 May the Director offer the parties to a
complaint the option of mediation?
DETERMINATIONS
37.90 If a complaint is investigated, what
must the Director do when the investigation is completed?
37.91 What notice must the Director issue if
he or she finds reasonable cause to believe that a violation has taken place?
37.92 What notice must the Director issue if
he or she finds no reasonable cause to believe that a violation has taken place?
37.93 What happens if the Director finds
that a violation has taken place, and the
recipient fails or refuses to take the corrective action listed in the Initial Determination?
37.94 What corrective or remedial actions
may be imposed where, after a compliance review or complaint investigation,
the Director finds a violation of the nondiscrimination and equal opportunity
provisions of WIA or this part?
37.95 What procedures apply if the Director
finds that a recipient has violated the
nondiscrimination and equal opportunity
provisions of WIA or this part?
37.96 What are the required elements of a
written assurance?
37.97 What are the required elements of a
Conciliation Agreement?
37.98 What are the circumstances under
which the Director will conclude that
compliance cannot be secured by voluntary means?
37.99 If the Director concludes that compliance cannot be secured by voluntary
means, what actions must he or she
take?
37.100 What information must a Final Determination contain?
37.101 Whom must the Director notify of a
finding of noncompliance?
BREACHES OF CONCILIATION AGREEMENTS
37.102 What happens if a grant applicant or
recipient breaches a Conciliation Agreement?
37.103 Whom must the Director notify about
a breach of a Conciliation Agreement?
37.104 What information must a Notification of Breach of Conciliation Agreement
contain?
37.105 Whom must the Director notify if enforcement action under a Notification of
Breach of Conciliation Agreement is
commenced?
Subpart E—Federal Procedures For
Effecting Compliance
37.110 What enforcement procedures does
the Department follow to effect compliance with the nondiscrimination and
equal opportunity provisions of WIA and
this part?
37.111 What hearing procedures does the Department follow?
37.112 What procedures for initial and final
decisions does the Department follow?
37.113 What procedure does the Department
follow to suspend, terminate, withhold,
deny or discontinue WIA Title I financial
assistance?
37.114 What procedure does the Department
follow to distribute WIA Title I financial
assistance to an alternate recipient?
37.115 What procedures does the Department follow for post-termination proceedings?
AUTHORITY: Sections 134(b), 136(d)(2)(F),
136(e), 172(a), 183(c), 185(c)(2), 185(d)(1)(E), 186,
187 and 188 of the Workforce Investment Act
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§ 37.1
29 CFR Subtitle A (7–1–01 Edition)
of 1998, 29 U.S.C. 2801 et seq.; Title VI of the
Civil Rights Act of 1964, as amended, 42
U.S.C. 2000d, et seq.; Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.
794; the Age Discrimination Act of 1975, as
amended, 42 U.S.C. 6101; and Title IX of the
Education Amendments of 1972, as amended,
20 U.S.C. 1681.
SOURCE: 64 FR 61715, Nov. 12, 1999, unless
otherwise noted.
Subpart A—General Provisions
§ 37.1
What is the purpose of this part?
The purpose of this part is to implement the nondiscrimination and equal
opportunity provisions of the Workforce Investment Act of 1998 (WIA),
which are contained in section 188 of
WIA. Section 188 prohibits discrimination on the grounds of race, color, religion, sex, national origin, age, disability, political affiliation or belief,
and for beneficiaries only, citizenship
or participation in a WIA Title I-financially assisted program or activity.
This part clarifies the application of
the nondiscrimination and equal opportunity provisions of WIA and provides
uniform procedures for implementing
them.
§ 37.2 To whom does this part apply,
and what is the scope of this part?
(a) This part applies to:
(1) Any recipient, as defined in § 37.4;
(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 WIA,
to the extent that the programs and
activities are being conducted as part
of the One-Stop delivery system; and
(3) The employment practices of a recipient and/or One-Stop partner, as
provided in § 37.10.
(b) Limitation of Application. This part
does not apply to:
(1) Programs or activities that are financially assisted by the Department
exclusively under laws other than Title
I of WIA, and that are not part of the
One-Stop delivery system (including
programs or activities implemented
under, authorized by, and/or financially
assisted by the Department under,
JTPA);
(2) Contracts of insurance or guaranty;
(3) The ultimate beneficiary to this
program of Federal financial assistance;
(4) Federal procurement contracts,
with the exception of contracts to operate or provide services to Job Corps
Centers; and
(5) Federally-operated Job Corps Centers. The operating Department is responsible for enforcing the nondiscrimination and equal opportunity
laws to which such Centers are subject.
§ 37.3 How does this part affect a recipient’s other obligations?
(a) A recipient’s compliance with this
part will satisfy any obligation of the
recipient to comply with 29 CFR part
31, the Department of Labor’s regulations implementing Title VI of the
Civil Rights Act of 1964, as amended
(Title VI), and with Subparts A, D and
E of 29 CFR part 32, the Department’s
regulations implementing Section 504
of the Rehabilitation Act of 1973, as
amended (Section 504).
(b) 29 CFR part 32, Subparts B and C
and Appendix A, the Department’s regulations which implement the requirements of Section 504 pertaining to employment practices and employmentrelated training, program accessibility,
and reasonable accommodation, are
hereby incorporated into this part by
reference. Therefore, recipients must
comply with the requirements set forth
in those regulatory sections as well as
the requirements listed in this part.
(c) Recipients that are also public entities or public accommodations, as defined by Titles II and III of the Americans with Disabilities Act of 1990
(ADA), should be aware of obligations
imposed by those titles.
(d) Similarly, recipients that are also
employers, employment agencies, or
other entities covered by Title I of the
ADA should be aware of obligations imposed by that title.
(e) Compliance with this part does
not affect, in any way, any additional
obligation that a recipient may have to
comply with the following laws and
their implementing regulations:
(1) Executive Order 11246, as amended;
(2) Sections 503 and 504 of the Rehabilitation Act of 1973, as amended (29
U.S.C. 793 and 794);
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Office of the Secretary of Labor
§ 37.4
(3) The affirmative action provisions
of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as
amended (38 U.S.C. 4212);
(4) The Equal Pay Act of 1963, as
amended (29 U.S.C. 206d);
(5) Titles VI and VII of the Civil
Rights Act of 1964, as amended (42
U.S.C. 2000d et seq. and 2000e et seq.);
(6) The Age Discrimination Act of
1975, as amended (42 U.S.C. 6101);
(7) The Age Discrimination in Employment Act of 1967, as amended (29
U.S.C. 621);
(8) Title IX of the Education Amendments of 1972, as amended (Title IX) (20
U.S.C. 1681);
(9) The Americans with Disabilities
Act of 1990, as amended (42 U.S.C. 12101
et seq.); and
(10) The anti-discrimination provision of the Immigration and Nationality Act, as amended (8 U.S.C. 1324b).
(f) This rule does not preempt consistent State and local requirements.
§ 37.4 What definitions apply to this
part?
As used in this part, the term:
Administrative Law Judge means a person appointed as provided in 5 U.S.C.
3105 and 5 CFR 930.203, and qualified
under 5 U.S.C. 557, to preside at hearings held under the nondiscrimination
and equal opportunity provisions of
WIA and this part.
Aid, benefits, services, or training
means WIA Title I—financially assisted services, financial or other aid,
or benefits provided by or through a recipient or its employees, or by others
through contract or other arrangements with the recipient. ‘‘Aid, benefits, services, or training’’ includes, but
is not limited to:
(1) Core and intensive services;
(2) Education or training;
(3) Health, welfare, housing, social
service, rehabilitation, or other supportive services;
(4) Work opportunities; and
(5) Cash, loans, or other financial assistance to individuals.
As used in this part, the term includes any aid, benefits, services, or
training provided in or through a facility that has been constructed, expanded, altered, leased, rented, or otherwise obtained, in whole or in part,
with Federal financial assistance under
Title I of WIA.
Applicant means an individual who is
interested in being considered for WIA
Title I—financially assisted aid, benefits, services, or training by a recipient, and who has signified that interest
by submitting personal information in
response to a request by the recipient.
See also the definitions of ‘‘application
for benefits,’’ ‘‘eligible applicant/registrant,’’ ‘‘participant,’’ ‘‘participation,’’ and ‘‘recipient’’ in this section.
Applicant for employment means a person or persons who make(s) application
for employment with a recipient of
Federal financial assistance under WIA
Title I.
Application for assistance means the
process by which required documentation is provided to the Governor, recipient, or Department before and as a
condition of receiving WIA Title I financial assistance (including both new
and continuing assistance).
Application for benefits means the
process by which information, including but not limited to a completed application form, is provided by applicants or eligible applicants before and
as a condition of receiving WIA Title
I—financially assisted aid, benefits,
services, or training from a recipient.
Assistant Attorney General means the
Assistant Attorney General, Civil
Rights Division, United States Department of Justice.
Assistant Secretary means the Assistant Secretary for Administration and
Management, United States Department of Labor.
Auxiliary aids or services includes—
(1) Qualified interpreters, notetakers,
transcription services, written materials, telephone handset amplifiers, assistive listening systems, telephones
compatible with hearing aids, closed
caption decoders, open and closed captioning, telecommunications devices
for
deaf
persons
(TDDs/TTYs),
videotext displays, or other effective
means of making aurally delivered materials available to individuals with
hearing impairments;
(2) Qualified readers, taped texts,
audio recordings, brailled materials,
large print materials, or other effective
means of making visually delivered
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§ 37.4
29 CFR Subtitle A (7–1–01 Edition)
materials available to individuals with
visual impairments;
(3) Acquisition or modification of
equipment or devices; and
(4) Other similar services and actions.
Beneficiary means the individual or
individuals intended by Congress to receive aid, benefits, services, or training
from a recipient.
Citizenship See ‘‘Discrimination on
the ground of citizenship’’ in this section.
CRC means the Civil Rights Center,
Office of the Assistant Secretary for
Administration and Management, U.S.
Department of Labor.
Department means the U.S. Department of Labor (DOL), including its
agencies and organizational units.
Departmental
grantmaking
agency
means a grantmaking agency within
the U.S. Department of Labor.
Director means the Director, Civil
Rights Center (CRC), Office of the Assistant Secretary for Administration
and Management, U.S. Department of
Labor, or a designee authorized to act
for the Director.
Disability means, with respect to an
individual, a physical or mental impairment that substantially limits one
or more of the major life activities of
such individual; a record of such an impairment; or being regarded as having
such an impairment.
(1)(i) The phrase physical or mental impairment means—
(A) Any physiological disorder or
condition, cosmetic disfigurement, or
anatomical loss affecting one or more
of the following body systems: neurological, musculoskeletal, special sense
organs, respiratory (including speech
organs), cardiovascular, reproductive,
digestive, genitourinary, hemic and
lymphatic, skin, and endocrine;
(B) Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or
mental illness, and specific learning
disabilities.
(ii) The phrase physical or mental impairment includes, but is not limited to,
such contagious and noncontagious diseases and conditions as orthopedic, visual, speech and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer,
heart disease, diabetes, mental retardation, emotional illness, specific
learning
disabilities,
HIV
disease
(whether symptomatic or asymptomatic), tuberculosis, drug addiction,
and alcoholism. The phrase ‘‘physical
or mental impairment’’ does not include homosexuality or bisexuality.
(2) The phrase major life activities
means functions such as caring for
one’s self, performing manual tasks,
walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) The phrase has a record of such an
impairment means has a history of, or
has been misclassified as having, a
mental or physical impairment that
substantially limits one or more major
life activities.
(4) The phrase is regarded as having an
impairment means—
(i) Has a physical or mental impairment that does not substantially limit
major life activities but that is treated
by the recipient as being such a limitation;
(ii) Has a physical or mental impairment that substantially limits major
life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this definition
but is treated by the recipient as having such an impairment.
Discrimination on the ground of citizenship means a denial of participation in
programs or activities financially assisted in whole or in part under Title I
of WIA to individuals on the basis of
their status as citizens or nationals of
the United States, lawfully admitted
permanent resident aliens, refugees,
asylees, and parolees, or other immigrants authorized by the Attorney General to work in the United States.
Eligible applicant/registrant means an
individual who has been determined eligible to participate in one or more
WIA Title I—financially assisted programs or activities.
Employment practices means a recipient’s practices related to employment,
including but not limited to:
(1) Recruitment or recruitment advertising;
(2) Selection, placement, layoff or
termination of employees;
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§ 37.4
(3) Upgrading, promotion, demotion
or transfer of employees;
(4) Training, including employmentrelated training;
(5) Participation in upward mobility
programs;
(6) Deciding rates of pay or other
forms of compensation;
(7) Use of facilities; or
(8) Deciding other terms, conditions,
benefits and/or privileges of employment.
Employment-related training means
training that allows or enables an individual to obtain employment.
Entity means any person, corporation, partnership, joint venture, sole
proprietorship, unincorporated association, consortium, Indian tribe or tribal
organization, Native Hawaiian organization, and/or entity authorized by
State or local law; any State or local
government; and/or any agency, instrumentality or subdivision of such a government.
Facility means all or any portion of
buildings, structures, sites, complexes,
equipment, roads, walks, passageways,
parking lots, rolling stock or other
conveyances, or other real or personal
property or interest in such property,
including the site where the building,
property, structure, or equipment is located. The phrase ‘‘real or personal
property’’ in the preceding sentence includes indoor constructs that may or
may not be permanently attached to a
building or structure. Such constructs
include, but are not limited to, office
cubicles, computer kiosks, and similar
constructs.
Federal grantmaking agency means a
Federal agency that provides financial
assistance under any Federal statute.
Financial assistance means any of the
following:
(1) Any grant, subgrant, loan, or advance of funds, including funds extended to any entity for payment to or
on behalf of participants admitted to
that entity for training, or extended directly to such participants for payment
to that entity;
(2) Provision of the services of
grantmaking agency personnel, or of
other personnel at the grantmaking
agency’s expense;
(3) A grant or donation of real or personal property or any interest in or use
of such property, including:
(a) Transfers or leases of property for
less than fair market value or for reduced consideration;
(b) 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
(c) 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:
(i) Without consideration,
(ii) At a nominal consideration, or
(iii) At a consideration that is reduced or waived either for the purpose
of assisting the recipient, or in recognition of the public interest to be served
by such sale or lease to or use by the
recipient;
(4) Waiver of charges that would normally be made for the furnishing of
services by the grantmaking agency;
and
(5) Any other agreement, arrangement, contract or subcontract (other
than a procurement contract or a contract of insurance or guaranty), or
other instrument that has as one of its
purposes the provision of assistance or
benefits under the statute or policy
that authorizes assistance by the
grantmaking agency.
Financial assistance under Title I of
WIA means any of the following, when
authorized or extended under WIA
Title I:
(1) Any grant, subgrant, loan, or advance of Federal funds, including funds
extended to any entity for payment to
or on behalf of participants admitted
to that entity for training, or extended
directly to such participants for payment to that entity;
(2) Provision of the services of Federal personnel, or of other personnel at
Federal expense;
(3) A grant or donation of Federal
real or personal property or any interest in or use of such property, including:
(a) Transfers or leases of property for
less than fair market value or for reduced consideration;
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§ 37.4
29 CFR Subtitle A (7–1–01 Edition)
(b) 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
(c) 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:
(i) Without consideration,
(ii) At a nominal consideration, or
(iii) 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 WIA Title I.
Fundamental alteration means:
(1) A change in the essential nature
of a program or activity as defined in
this part, including but not limited to
an aid, service, benefit, or training; or
(2) A cost that a recipient can demonstrate would result in an undue burden. Factors to be considered in making the determination whether the cost
of a modification would result in such
a burden include:
(a) 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;
(b) The overall financial resources of
the facility or facilities involved in the
provision of the modification, including:
(i) The number of persons aided, benefited, served, or trained by, or employed at, the facility or facilities; and
(ii) The effect the modification would
have on the expenses and resources of
the facility or facilities;
(c) The overall financial resources of
the recipient, including:
(i) The overall size of the recipient;
(ii) The number of persons aided, benefited, served, trained, or employed by
the recipient; and
(iii) The number, type and location of
the recipient’s facilities;
(d) The type of operation or operations of the recipient, including:
(i) The geographic separateness and
administrative or fiscal relationship of
the facility or facilities in question to
the recipient; and
(ii) Where the modification sought is
employment-related, the composition,
structure and functions of the recipient’s workforce; and
(e) The impact of the modification
upon the operation of the facility or facilities, including:
(i) The impact on the ability of other
participants to receive aid, benefits,
services, or training, or of other employees to perform their duties; and
(ii) The impact on the facility’s ability to carry out its mission.
Governor means the chief elected official of any State or his or her designee.
Grant applicant means an entity that
submits the required documentation to
the Governor, recipient, or Department, before and as a condition of receiving financial assistance under Title
I of WIA.
Grantmaking agency means an entity
that provides Federal financial assistance.
Guideline means written informational material supplementing an
agency’s regulations and provided to
grant applicants and recipients to provide program-specific interpretations
of their responsibilities under the regulations.
Illegal use of drugs means the use of
drugs, the possession or distribution of
which is unlawful under the Controlled
Substances Act, as amended (21 U.S.C.
812). ‘‘Illegal use of drugs’’ does not include the use of a drug taken under supervision of a licensed health care professional, or other uses authorized by
the Controlled Substances Act or other
provisions of Federal law.
Individual with a disability means a
person who has a disability, as defined
in this section.
(1) The term ‘‘individual with a disability’’ does not include an individual
on the basis of:
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§ 37.4
(i) Transvestism, transsexualism,
pedophilia, exhibitionism, voyeurism,
gender identity disorders not resulting
from physical impairments, or other
sexual behavior disorders;
(ii) Compulsive gambling, kleptomania, or pyromania; or
(iii) Psychoactive substance use disorders resulting from current illegal
use of drugs.
(2) The term ‘‘individual with a disability’’ also does not include an individual who is currently engaging in the
illegal use of drugs, when a recipient
acts on the basis of such use. This limitation does not exclude as an individual with a disability an individual
who:
(i) Has successfully completed a supervised drug rehabilitation program
and is no longer engaging in the illegal
use of drugs, or has otherwise been rehabilitated successfully and is no
longer engaging in such use;
(ii) Is participating in a supervised
rehabilitation program and is no longer
engaging in such use; or
(iii) Is erroneously regarded as engaging in such use, but is not engaging in
such use, except that it is not a violation of the nondiscrimination and
equal opportunity provisions of WIA or
this part for a recipient to adopt or administer reasonable policies or procedures, including but not limited to
drug testing, designed to ensure that
an individual described in paragraph
(1)(i) or (1)(ii) of this definition is no
longer engaging in the illegal use of
drugs.
(2) With regard to employment, the
term ‘‘individual with a disability’’
does not include any individual who:
(i) Is an alcoholic:
(A) Whose current use of alcohol prevents such individual from performing
the duties of the job in question, or
(B) Whose employment, by reason of
such current alcohol abuse, would constitute a direct threat to property or
the safety of others; or
(ii) Has a currently contagious disease or infection, if:
(A) That disease or infection prevents
him or her from performing the duties
of the job in question, or
(B) His or her employment, because
of that disease or infection, would con-
stitute a direct threat to the health
and safety of others.
Labor market area means an economically integrated geographic area within
which individuals can reside and find
employment within a reasonable distance or can readily change employment without changing their place of
residence. Such an area must be identified in accordance with either criteria
used by the Bureau of Labor Statistics
of the Department of Labor in defining
such areas, or similar criteria established by a Governor.
LWIA (Local Workforce Investment
Area) grant recipient means the entity
that receives WIA Title I financial assistance for a Local Workforce Investment Area directly from the Governor
and disburses those funds for workforce
investment activities.
Methods of Administration means the
written document and supporting documentation developed under § 37.54.
National Programs means:
(1) Job Corps; and
(2) Programs receiving Federal funds
under Title I, Subtitle D of WIA directly from the Department. Such programs include, but are not limited to,
the Migrant and Seasonal Workers Programs, Native American Programs, and
Veterans’ Workforce Investment programs.
Noncompliance means a failure of a
grant applicant or recipient to comply
with any of the applicable requirements of the nondiscrimination and
equal opportunity provisions of WIA or
this part.
On-the-Job Training (OJT) means
training by an employer that is provided to a paid participant while the
participant is engaged in productive
work that:
(1) Provides knowledge or skills essential to the full and adequate performance of the job;
(2) Provides reimbursement to the
employer of up to 50 percent of the
wage rate of the participant, for the extraordinary costs of providing the
training and additional supervision related to the training; and
(3) Is limited in duration as appropriate to the occupation for which the
participant is being trained, taking
into account the content of the training, the prior work experience of the
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§ 37.4
29 CFR Subtitle A (7–1–01 Edition)
participant, and the service strategy of
the participant, as appropriate.
Participant means an individual who
has been determined to be eligible to
participate in, and who is receiving aid,
benefits, services or training under, a
program or activity funded in whole or
in part under Title I of WIA. ‘‘Participant’’ includes, but is not limited to,
applicants receiving any service(s)
under state Employment Service programs, and claimants receiving any
service(s) under state Unemployment
Insurance programs.
Participation is considered to commence on the first day, following determination of eligibility, on which the
participant began receiving subsidized
aid, benefits, services, or training provided under Title I of WIA.
Parties to a hearing means the Department and the grant applicant(s), recipient(s), or Governor.
Population eligible to be served means
the total population of adults and eligible youth who reside within the labor
market area that is served by a particular recipient, and who are eligible
to seek WIA Title I-financially assisted
aid, benefits, services or training from
that recipient. See the definition of
‘‘labor market area’’ in this section.
Program or activity: See ‘‘WIA Title Ifinancially assisted program or activity’’ in this section.
Prohibited ground means any basis
upon which it is illegal to discriminate
under the nondiscrimination and equal
opportunity provisions of WIA or this
part, i.e., race, color, religion, sex, national origin, age, disability, political
affiliation or belief, and, for beneficiaries only, citizenship or participation in a WIA Title I-financially assisted program or activity.
Public entity means:
(1) Any State or local government;
and
(2) Any department, agency, special
purpose district, workforce investment
board, or other instrumentality of a
State or States or local government.
Qualified individual with a disability
means:
(1) With respect to employment, an
individual with a disability who, with
or without reasonable accommodation,
is capable of performing the essential
functions of the job in question;
(2) With respect to aid, benefits, services, or training, an individual with a
disability who, with or without reasonable accommodation and/or reasonable
modification, meets the essential eligibility requirements for the receipt of
such aid, benefits, services, or training.
Qualified interpreter means an interpreter who is able to interpret effectively, accurately, and impartially, either for individuals with disabilities or
for individuals with limited English
skills. The interpreter must be able to
interpret both receptively and expressively, using any necessary specialized
vocabulary.
Reasonable accommodation. (1) The
term
‘‘reasonable
accommodation’’
means:
(i) Modifications or adjustments to
an
application/registration
process
that enables a qualified applicant/registrant with a disability to be considered for the aid, benefits, services,
training, or employment that the
qualified applicant/registrant desires;
or
(ii) Modifications or adjustments
that enable a qualified individual with
a disability to perform the essential
functions of a job, or to receive aid,
benefits, services, or training equal to
that provided to qualified individuals
without disabilities. These modifications or adjustments may be made to:
(A) The environment where work is
performed or aid, benefits, services, or
training are given; or
(B) The customary manner in which,
or circumstances under which, a job is
performed or aid, benefits, services, or
training are given; or
(iii) Modifications or adjustments
that enable a qualified individual with
a disability to enjoy the same benefits
and privileges of the aid, benefits, services, training, or employment as are
enjoyed by other similarly situated individuals without disabilities.
(2) Reasonable accommodation includes, but is not limited to:
(i) Making existing facilities used by
applicants, registrants, eligible applicants/registrants, participants, applicants for employment, and employees
readily accessible to and usable by individuals with disabilities; and
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Office of the Secretary of Labor
§ 37.4
(ii) Restructuring of a job or a service, or of the way in which aid, benefits, or training is/are provided; parttime or modified work or training
schedules; acquisition or modification
of equipment or devices; appropriate
adjustment or modifications of examinations, training materials, or policies;
the provision of readers or interpreters;
and other similar accommodations for
individuals with disabilities.
(3) To determine the appropriate reasonable accommodation, it may be necessary for the recipient to initiate an
informal, interactive process with the
qualified individual with a disability in
need of the accommodation. This process should identify the precise limitations resulting from the disability and
potential reasonable accommodations
that could overcome those limitations.
Recipient means any entity to which
financial assistance under WIA Title I
is extended, either directly from the
Department or through the Governor
or another recipient (including any
successor, assignee, or transferee of a
recipient), but excluding the ultimate
beneficiaries of the WIA Title I-funded
program or activity. In instances in
which a Governor operates a program
or activity, either directly or through
a State agency, using discretionary
funds apportioned to him or her under
WIA Title I (rather than disbursing the
funds to another recipient), the Governor is also a recipient. ‘‘Recipient’’
includes, but is not limited to:
(1) State-level agencies that administer, or are financed in whole or in
part with, WIA Title I funds;
(2) State Employment Security Agencies;
(3) State and local Workforce Investment Boards;
(4) LWIA 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, excluding the operators of
federally-operated Job Corps centers;
(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; and
(12) Other National Program recipients.
In addition, for purposes of this part,
One-Stop partners, as defined in section 121(b) of WIA, are treated as ‘‘recipients,’’ and are subject to the nondiscrimination and equal opportunity
requirements of this part, to the extent
that they participate in the One-Stop
delivery system.
Registrant means the same as ‘‘applicant’’ for purposes of this part. See
also the definitions of ‘‘application for
benefits,’’
‘‘eligible
applicant/registrant,’’ ‘‘participant,’’ ‘‘participation,’’ and ‘‘recipient’’ in this section.
Respondent means a grant applicant
or recipient (including a Governor)
against which a complaint has been
filed under the nondiscrimination and
equal opportunity provisions of WIA or
this part.
Secretary means the Secretary of
Labor, U.S. Department of Labor, or
his or her designee.
Sectarian activities means religious
worship or ceremony, or sectarian instruction.
Section 504 means Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C.
794, as amended, which forbids discrimination against qualified individuals with disabilities in federally-financed and conducted programs and
activities.
Service provider means:
(1) Any operator of, or provider of
aid, benefits, services, or training to:
(a) Any WIA Title I—funded program
or activity that receives financial assistance from or through any State or
LWIA grant recipient; or
(b) Any participant through that participant’s Individual Training Account
(ITA); or
(2) Any entity that is selected and/or
certified as an eligible provider of
training services to participants.
Small recipient means a recipient who:
(a) Serves a total of fewer than 15
beneficiaries during the entire grant
year, and
(b) Employs fewer than 15 employees
on any given day during the grant
year.
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§ 37.4
29 CFR Subtitle A (7–1–01 Edition)
Solicitor means the Solicitor of Labor,
U.S. Department of Labor, or his or her
designee.
State means the individual states of
the United States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, American
Samoa, Guam, Wake Island, the Commonwealth of the Northern Mariana Islands, the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau.
State Employment Security Agency
(SESA) means the State agency that,
under the State Administrator, contains both State agencies with responsibility for administering programs authorized under the Wagner-Peyser Act,
and unemployment insurance programs
authorized under Title III of the Social
Security Act.
State Programs means programs financially assisted in whole or in part
under Title I of WIA in which either:
(1) The Governor and/or State receives and disburses the grant to or
through LWIA grant recipients; or
(2) The Governor retains the grant
funds and operates the programs, either directly or through a State agency.
‘‘State programs’’ also includes State
Employment Security Agencies, State
Employment Service agencies, and/or
State unemployment compensation
agencies.
Supportive services means services,
such as transportation, child care, dependent care, housing, and needs-related payments, that are necessary to
enable an individual to participate in
WIA Title I-financially assisted programs and activities, as consistent
with the provisions of WIA.
Terminee means a participant whose
participation in the program terminates, voluntarily or involuntarily,
during the applicable program year.
Title VI means Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d, et
seq., as amended, which forbids recipients of Federal financial assistance
from discriminating on the basis of
race, color, or national origin.
Transferee means a person or entity
to whom real or personal property, or
an interest in such property, is transferred.
Ultimate beneficiary See the definition
of ‘‘beneficiary’’ in this section.
Undue hardship This term has different
meanings,
depending
upon
whether it is used with regard to reasonable accommodation of individuals
with disabilities, or with regard to religious accommodation.
(1) Reasonable accommodation of individuals with disabilities: (i) In general,
‘‘undue hardship’’ means significant
difficulty or expense incurred by a recipient, when considered in light of the
factors set forth in paragraph (ii).
(ii) Factors to be considered in determining whether an accommodation
would impose an undue hardship on a
recipient include:
(A) The nature and net cost of the accommodation needed, taking into consideration the availability of tax credits and deductions, and/or outside funding, for the accommodation;
(B) The overall financial resources of
the facility or facilities involved in the
provision of the reasonable accommodation, including:
(1) The number of persons aided, benefited, served, or trained by, or employed at, the facility or facilities, and
(2) The effect the accommodation
would have on the expenses and resources of the facility or facilities;
(C) The overall financial resources of
the recipient, including:
(1) The overall size of the recipient,
(2) The number of persons aided, benefited, served, trained, or employed by
the recipient, and
(3) The number, type and location of
the recipient’s facilities;
(D) The type of operation or operations of the recipient, including:
(1) The geographic separateness and
administrative or fiscal relationship of
the facility or facilities in question to
the recipient, and
(2) Where the individual is seeking an
employment-related
accommodation,
the composition, structure and functions of the recipient’s workforce; and
(E) The impact of the accommodation upon the operation of the facility
or facilities, including:
(1) The impact on the ability of other
participants to receive aid, benefits,
services, or training, or of other employees to perform their duties, and
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Office of the Secretary of Labor
§ 37.6
(2) The impact on the facility’s ability to carry out its mission.
(2) Religious accommodation For purposes of religious accommodation only,
‘‘undue hardship’’ means any additional, unusual costs, other than de
minimis costs, that a particular accommodation would impose upon a recipient. See Trans World Airlines, Inc. v.
Hardison, 432 U.S. 63, 81, 84 (1977).
WIA means the Workforce Investment Act of 1998, Pub. L. 105–220.
WIA Title I financial assistance See the
definition of ‘‘Federal financial assistance under Title I of WIA’’ in this section.
WIA Title I-funded program or activity
means:
(1) A program or activity, operated
by a recipient and funded, in whole or
in part, under Title I of WIA, that provides either:
(i) Any aid, benefits, services, or
training to individuals; or
(ii) Facilities for furnishing any aid,
benefits, services, or training to individuals;
(2) Aid, benefits, services, or training
provided in facilities that are being or
were constructed with the aid of Federal financial assistance under WIA
Title I; or
(3) Aid, benefits, services, or training
provided with the aid of any non-WIA
Title I funds, property, or other resources that are required to be expended or made available in order for
the program to meet matching requirements or other conditions which must
be met in order to receive the WIA
Title I financial assistance.
See the definition of ‘‘aid, benefits,
services, or training’’ in this section.
§ 37.5 What forms of discrimination
are prohibited by this part?
No individual in the United States
may, on the ground of race, color, religion, sex, national origin, age, disability, political affiliation or belief,
and for beneficiaries only, citizenship
or participation in any WIA 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 WIA Title I—funded program or activity.
§ 37.6 What specific discriminatory actions, based on prohibited grounds
other than disability, are prohibited
by this part?
(a) For the purposes of this section,
‘‘prohibited ground’’ means race, color,
religion, sex, national origin, age, political affiliation or belief, and for
beneficiaries only, citizenship or participation in any WIA Title I—financially assisted program or activity.
(b) A recipient must not, directly or
through contractual, licensing, or
other arrangements, on a prohibited
ground:
(1) Deny an individual any aid, benefits, services, or training provided
under a WIA Title I—funded program
or activity;
(2) Provide to an individual any aid,
benefits, services, or training that is
different, or is provided in a different
manner, from that provided to others
under a WIA Title I—funded program
or activity;
(3) Subject an individual to segregation or separate treatment in any matter related to his or her receipt of any
aid, benefits, services, or training
under a WIA Title I—funded program
or activity;
(4) Restrict an individual in any way
in the enjoyment of any advantage or
privilege enjoyed by others receiving
any aid, benefits, services, or training
under a WIA Title I—funded program
or activity;
(5) Treat an individual differently
from others in determining whether he
or she satisfies any admission, enrollment, eligibility, membership, or other
requirement or condition for any aid,
benefits, services, or training provided
under a WIA Title I—funded program
or activity;
(6) Deny or limit an individual with
respect to any opportunity to participate in a WIA Title I—funded program
or activity, or afford him or her an opportunity to do so that is different
from the opportunity afforded others
under a WIA Title I—funded program
or activity;
(7) Deny an individual the opportunity to participate as a member of a
planning or advisory body that is an
integral part of the WIA Title I—funded program or activity; or
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§ 37.6
29 CFR Subtitle A (7–1–01 Edition)
(8) Otherwise limit on a prohibited
ground an individual in enjoyment of
any right, privilege, advantage, or opportunity enjoyed by others receiving
any WIA Title I—financially assisted
aid, benefits, services, or training.
(c) A recipient must not, directly or
through contractual, licensing, or
other arrangements:
(1) Aid or perpetuate discrimination
by providing significant assistance to
an agency, organization, or person that
discriminates on a prohibited ground in
providing any aid, benefits, services, or
training to registrants, applicants or
participants in a WIA Title I—funded
program or activity; or
(2) Refuse to accommodate an individual’s religious practices or beliefs,
unless to do so would result in undue
hardship, as defined in section 37.4.
(d) (1) In making any of the determinations listed in paragraph (d)(2) of
this section, either directly or through
contractual, licensing, or other arrangements, a recipient must not use
standards, procedures, criteria, or administrative methods that have any of
the following purposes or effects:
(i) Subjecting individuals to discrimination on a prohibited ground; or
(ii) Defeating or substantially impairing, on a prohibited ground, accomplishment of the objectives of either:
(A) The WIA Title I—funded program
or activity; or
(B) the nondiscrimination and equal
opportunity provisions of WIA or this
part.
(2) The determinations to which this
paragraph applies include, but are not
limited to:
(i) The types of aid, benefits, services, training, or facilities that will be
provided under any WIA Title I—funded program or activity;
(ii) The class of individuals to whom
such aid, benefits, services, training, or
facilities will be provided; or
(iii) The situations in which such aid,
benefits, services, training, or facilities
will be provided.
(3) Paragraph (d) of this section applies to the administration of WIA
Title I—funded programs or activities
providing aid, benefits, services, training, or facilities in any manner, including, but not limited to:
(i) Outreach and recruitment;
(ii) Registration;
(iii) Counseling and guidance;
(iv) Testing;
(v) Selection, placement, appointment, and referral;
(vi) Training; and
(vii) Promotion and retention.
(4) A recipient must not take any of
the prohibited actions listed in paragraph (d) of this section either directly
or through contractual, licensing, or
other arrangements.
(e) In determining the site or location of facilities, a grant applicant or
recipient must not make selections
that have any of the following purposes
or effects:
(1) On a prohibited ground:
(i) Excluding individuals from a WIA
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 WIA Title I—financially assisted program or activity; or
(ii) The nondiscrimination and equal
opportunity provisions of WIA or this
part.
(f) (1) A recipient must not permit
participants to be employed or trained
in sectarian activities.
(2) This paragraph applies to any facility that is, or will be, primarily used
or inherently devoted either:
(A) For sectarian instruction; or
(B) As a place of worship,
(ii) A recipient must not permit participants to be employed or trained in
any way to:
(A) Construct any part of such a facility,
(B) Operate any part of such a facility, or
(C) Maintain any part of that facility.
(3) If a facility is not primarily or inherently devoted to sectarian instruction or religious worship, a recipient
may permit the use of WIA Title I
funds to employ participants to maintain the facility, if the organization
that operates the facility is part of a
program or activity that provides services to participants.
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Office of the Secretary of Labor
§ 37.7
(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.
§ 37.7 What specific discriminatory actions based on disability are prohibited by this part?
(a) In providing any aid, benefits,
services, or training under a WIA Title
I—financially assisted program or activity, a recipient must not, directly or
through contractual, licensing, or
other arrangements, on the ground of
disability:
(1) Deny a qualified individual with a
disability the opportunity to participate in or benefit from the aid, benefits, services, or training;
(2) Afford a qualified individual with
a disability an opportunity to participate in or benefit from the aid, benefits, services, or training that is not
equal to that afforded others;
(3) Provide a qualified individual
with a disability with an aid, benefit,
service or training that is not as effective in affording equal opportunity to
obtain the same result, to gain the
same benefit, or to reach the same
level of achievement as that provided
to others;
(4) Provide different, segregated, or
separate aid, benefits, services, or
training to individuals with disabilities, or to any class of individuals
with disabilities, unless such action is
necessary to provide qualified individuals with disabilities with aid, benefits,
services or training that are as effective as those provided to others;
(5) Deny a qualified individual with a
disability the opportunity to participate as a member of planning or advisory boards; or
(6) Otherwise limit a qualified individual with a disability in enjoyment
of any right, privilege, advantage, or
opportunity enjoyed by others receiving any aid, benefit, service or training.
(b) A recipient must not, directly or
through contractual, licensing, or
other arrangements, aid or perpetuate
discrimination against qualified individuals with disabilities by providing
significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefits, services or
training to registrants, applicants, or
participants.
(c) A recipient must not deny a qualified individual with a disability the opportunity to participate in WIA Title
I—financially assisted programs or activities despite the existence of permissibly separate or different programs or
activities.
(d) A recipient must administer WIA
Title I—financially assisted programs
and activities in the most integrated
setting appropriate to the needs of
qualified individuals with disabilities.
(e) A recipient must not, directly or
through contractual, licensing, or
other arrangements, use standards,
procedures, criteria, or administrative
methods:
(1) That have the purpose or effect of
subjecting qualified individuals with
disabilities to discrimination on the
ground of disability;
(2) That have the purpose or effect of
defeating or substantially impairing
accomplishment of the objectives of
the WIA 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 WIA Title I-financially assisted
program or activity;
(ii) Denying them the benefits of
such a program or activity; or
(iii) Subjecting them to discrimination; or
(2) Defeating or substantially impairing the accomplishment of the disability-related objectives of either:
(i) The WIA Title I-financially assisted program or activity; or
(ii) The nondiscrimination and equal
opportunity provisions of WIA or this
part.
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§ 37.8
29 CFR Subtitle A (7–1–01 Edition)
(g) A recipient, in the selection of
contractors, must not use criteria that
subject qualified individuals with disabilities to discrimination on the basis
of disability.
(h) A recipient must not administer a
licensing or certification program in a
manner that subjects qualified individuals with disabilities to discrimination
on the basis of disability, nor may a recipient establish requirements for the
programs or activities of licensees or
certified entities that subject qualified
individuals with disabilities to discrimination on the basis of disability.
The programs or activities of entities
that are licensed or certified by a recipient are not, themselves, covered by
this part.
(i) A recipient must not impose or
apply eligibility criteria that screen
out or tend to screen out an individual
with a disability or any class of individuals with disabilities from fully and
equally enjoying any aid, benefit, service, training, program, or activity, unless such criteria can be shown to be
necessary for the provision of the aid,
benefit, service, training, program, or
activity being offered.
(j) Nothing in this part prohibits a
recipient from providing aid, benefits,
services, training, or advantages to individuals with disabilities, or to a particular class of individuals with disabilities, beyond those required by this
part.
(k) A recipient must not place a surcharge on a particular individual with
a disability, or any group of individuals
with disabilities, to cover the costs of
measures, such as the provision of auxiliary aids or program accessibility,
that are required to provide that individual or group with the nondiscriminatory treatment required by WIA
Title I or this part.
(l) A recipient must not exclude, or
otherwise deny equal aid, benefits,
services, training, programs, or activities to, an individual or entity because
of the known disability of an individual
with whom the individual or entity is
known to have a relationship or association.
(m) The exclusion of an individual
without a disability from the benefits
of a program limited by Federal statute or Executive Order to individuals
with disabilities, or the exclusion of a
specific class of individuals with disabilities from a program limited by
Federal statute or Executive Order to a
different class of individuals with disabilities, is not prohibited by this part.
(n) This part does not require a recipient to provide any of the following
to individuals with disabilities:
(1) Personal devices, such as wheelchairs;
(2) Individually prescribed devices,
such as prescription eyeglasses or hearing aids;
(3) Readers for personal use or study;
or
(4) Services of a personal nature, including assistance in eating, toileting,
or dressing.
(o)(1) Nothing in this part requires an
individual with a disability to accept
an accommodation, aid, benefit, service, training, or opportunity provided
under WIA 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.
§ 37.8 What are a recipient’s responsibilities regarding reasonable accommodation and reasonable modification for individuals with disabilities?
(a) With regard to aid, benefits, services, training, and employment, a recipient must provide reasonable accommodation to qualified individuals
with disabilities who are applicants,
registrants,
eligible
applicants/registrants, participants, employees, or
applicants for employment, unless providing the accommodation would cause
undue hardship. See the definitions of
‘‘reasonable
accommodation’’
and
‘‘undue hardship’’ in § 37.4 of this part.
(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 § 37.4. The decision must be accompanied by a written
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Office of the Secretary of Labor
§ 37.9
statement of the recipient’s reasons for
reaching that conclusion. The recipient
must provide a copy of the statement
of reasons to the individual or individuals who requested the accommodation.
(3) If a requested accommodation
would result in undue hardship, the recipient must take any other action
that would not result in such hardship,
but would nevertheless ensure that, to
the maximum extent possible, individuals with disabilities receive the aid,
benefits, services, training, or employment provided by the recipient.
(b) A recipient must also make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless
making the modifications would fundamentally alter the nature of the
service, program, or activity. See the
definition of ‘‘fundamental alteration’’
in § 37.4 of this part.
(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 § 37.4.
The decision must be accompanied by a
written statement of the recipient’s
reasons for reaching that conclusion.
The recipient must provide a copy of
the statement of reasons to the individual or individuals who requested the
modification.
(3) If a modification would result in a
fundamental alteration, the recipient
must take any other action that would
not result in such an alteration, but
would nevertheless ensure that, to the
maximum extent possible, individuals
with disabilities receive the aid, benefits, services, training, or employment
provided by the recipient.
§ 37.9 What are a recipient’s responsibilities to communicate with individuals with disabilities?
(a) Recipients must take appropriate
steps to ensure that communications
with beneficiaries, registrants, applicants, eligible applicants/registrants,
participants, applicants for employment, employees, and members of the
public who are individuals with disabilities, are as effective as communications with others.
(b) A recipient must furnish appropriate auxiliary aids or services where
necessary to afford individuals with
disabilities an equal opportunity to
participate in, and enjoy the benefits
of, the WIA Title I—financially assisted program or activity. In determining what type of auxiliary aid or
service is appropriate and necessary,
such recipient must give primary consideration to the requests of the individual with a disability.
(c) Where a recipient communicates
by telephone with beneficiaries, registrants, applicants, eligible applicants/registrants, participants, applicants for employment, and/or employees, the recipient must use telecommunications devices for individuals
with hearing impairments (TDDs/
TTYs), or equally effective communications systems, such as telephone
relay services.
(d) A recipient must ensure that interested individuals, including individuals with visual or hearing impairments, can obtain information as to
the existence and location of accessible
services, activities, and facilities.
(e)(1) A recipient must provide signage at a primary entrance to each of
its inaccessible facilities, directing
users to a location at which they can
obtain information about accessible facilities. The signage provided must
meet the most current standards prescribed by the General Services Administration under the Architectural Barriers Act at 41 CFR 101–19.6. Alternative standards for the signage may
be adopted when it is clearly evident
that such alternative standards provide
equivalent or greater access to the information.
(2) The international symbol for accessibility must be used at each primary entrance of an accessible facility.
(f) This section does not require a recipient to take any action that it can
demonstrate would result in a fundamental alteration in the nature of a
service, program, or activity.
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§ 37.10
29 CFR Subtitle A (7–1–01 Edition)
(1) In those circumstances where a
recipient believes that the proposed action would fundamentally alter the
WIA 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
WIA Title I—financially assisted program, activity, or service, and must be
accompanied by a written statement of
the reasons for reaching that conclusion.
(3) If an action required to comply
with this section would result in the
fundamental alteration described in
paragraph (f)(1) of this section, the recipient must take any other action
that would not result in such an alteration, but would nevertheless ensure
that, to the maximum extent possible,
individuals with disabilities receive the
benefits or services provided by the recipient.
§ 37.10 To what extent are employment
practices covered by this part?
(a) Discrimination on the ground of
race, color, religion, sex, national origin, age, disability, or political affiliation or belief is prohibited in employment practices in the administration
of, or in connection with:
(1) Any WIA 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 WIA, to the
extent that the program or activity is
being conducted as part of the OneStop delivery system.
(b) Employee selection procedures. In
implementing this section, a recipient
must comply with the Uniform Guidelines on Employee Selection Procedures, 41 CFR part 60–3.
(c) Standards for employment-related
investigations and reviews. In any investigation or compliance review, the Director must consider Equal Employment Opportunity Commission (EEOC)
regulations, guidance and appropriate
case law in determining whether a re-
cipient has engaged in an unlawful employment practice.
(d) As provided in § 37.3(b) of this
part, 29 CFR part 32, subparts B and C
and Appendix A, which implement the
requirements of Section 504 pertaining
to employment practices and employment-related training, program accessibility, and reasonable accommodation, have been incorporated into this
part by reference. Therefore, recipients
must comply with the requirements set
forth in those regulatory sections as
well as the requirements listed in this
part.
(e) Recipients that are also employers, employment agencies, or other entities covered by Titles I and II of the
ADA should be aware of obligations imposed by those titles. See 29 CFR part
1630 and 28 CFR part 35.
(f) Similarly, recipients that are also
employers covered by the anti-discrimination provision of the Immigration and Nationality Act should be
aware of the obligations imposed by
that provision. See 8 U.S.C. 1324b, as
amended.
(g) This rule does not preempt consistent State and local requirements.
§ 37.11 To what extent are intimidation and retaliation prohibited by
this part?
(a) A recipient must not discharge,
intimidate, retaliate, threaten, coerce
or discriminate against any individual
because the individual has:
(1) Filed a complaint alleging a violation of Section 188 of WIA or this part;
(2) Opposed a practice prohibited by
the nondiscrimination and equal opportunity provisions of WIA 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 WIA 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 WIA or this part.
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Office of the Secretary of Labor
§ 37.16
(b) The sanctions and penalties contained in Section 188(b) of WIA 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.
§ 37.12 What Department of Labor office is responsible for administering
this part?
The Civil Rights Center (CRC), in the
Office of the Assistant Secretary for
Administration and Management, is responsible for administering and enforcing the nondiscrimination and equal
opportunity provisions of WIA and this
part, and for developing and issuing
policies, standards, guidance, and procedures for effecting compliance.
§ 37.13 Who is responsible for providing interpretations of this part?
The Director will make any rulings
under, or interpretations of, the nondiscrimination and equal opportunity
provisions of WIA or this part.
§ 37.14 Under what circumstances may
the Secretary delegate the responsibilities of this part?
(a) The Secretary may from time to
time assign to officials of other departments or agencies of the Government
(with the consent of such department
or agency) responsibilities in connection with the effectuation of the nondiscrimination and equal opportunity
provisions of WIA and this part (other
than responsibility for final decisions
under § 37.112), 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 WIA 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.
§ 37.15 What are the Director’s responsibilities to coordinate with other
civil rights agencies?
(a) Whenever a compliance review or
complaint investigation under this
part reveals possible violation of one or
more of the laws listed in paragraph (b)
of this section, or of any other Federal
civil rights law, that is not also a violation of the nondiscrimination and
equal opportunity provisions of WIA 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.
§ 37.16 What is this part’s effect on a
recipient’s obligations under other
laws, and what limitations apply?
(a) Effect of State or local law or other
requirements. The obligation to comply
with the nondiscrimination and equal
opportunity provisions of WIA or this
part are not excused or reduced by any
State or local law or other requirement
that, on a prohibited ground, prohibits
or limits an individual’s eligibility to
receive aid, benefits, services, or training; to participate in any WIA Title I—
financially assisted program or activity; to be employed by any recipient; or
to practice any occupation or profession.
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§ 37.20
29 CFR Subtitle A (7–1–01 Edition)
(b) Effect of private organization rules.
The obligation to comply with the nondiscrimination and equal opportunity
provisions of WIA and this part is not
excused or reduced by any rule or regulation of any private organization,
club, league or association that, on a
prohibited ground, prohibits or limits
an individual’s eligibility to participate in any WIA Title I—financially assisted program or activity to which
this part applies.
(c) Effect of possible future exclusion
from employment opportunities. A recipient must not exclude any individual
from, or restrict any individual’s participation in, any program or activity
based on the recipient’s belief or concern that the individual will encounter
limited future employment opportunities because of his or her race, color,
religion, sex, national origin, age, disability, political affiliation or belief, or
citizenship.
Subpart B—Recordkeeping and
Other Affirmative Obligations
of Recipients
ASSURANCES
§ 37.20 What is a grant applicant’s obligation to provide a written assurance?
(a) (1) Each application for financial
assistance under Title I of WIA, as defined in § 37.4, must include the following assurance:
As a condition to the award of financial assistance from the Department of
Labor under Title I of WIA, the grant
applicant assures that it will comply
fully with the nondiscrimination and
equal opportunity provisions of the following laws:
Section 188 of the Workforce Investment Act of 1998 (WIA), which prohibits
discrimination against all individuals
in the United States on the basis of
race, color, religion, sex, national origin, age, disability, political affiliation
or belief, and against beneficiaries on
the basis of either citizenship/status as
a lawfully admitted immigrant authorized to work in the United States or
participation in any WIA Title I—financially assisted program or activity;
Title VI of the Civil Rights Act of
1964, as amended, which prohibits dis-
crimination on the bases of race, color
and national origin;
Section 504 of the Rehabilitation Act
of 1973, as amended, which prohibits
discrimination against qualified individuals with disabilities;
The Age Discrimination Act of 1975,
as amended, which prohibits discrimination on the basis of age; and
Title IX of the Education Amendments of 1972, as amended, which prohibits discrimination on the basis of
sex in educational programs.
The grant applicant also assures that
it will comply with 29 CFR part 37 and
all other regulations implementing the
laws listed above. This assurance applies to the grant applicant’s operation
of the WIA Title I-financially assisted
program or activity, and to all agreements the grant applicant makes to
carry out the WIA 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 the
WIA is made available, whether or not
it is physically incorporated in such
document and whether or not there is a
written agreement between the Department and the recipient, between the
Department and the Governor, between
the Governor and the recipient, or between recipients. The assurance also
may be incorporated by reference in
such grants, cooperative agreements,
contracts, or other arrangements.
(b) Continuing State programs. Each
Strategic Five-Year State Plan submitted by a State to carry out a continuing WIA Title I-financially assisted
program or activity must provide a
statement that the WIA Title I-financially assisted program or activity is
(or, in the case of a new WIA Title I-financially assisted program or activity,
will be) conducted in compliance with
the nondiscrimination and equal opportunity provisions of WIA and this part,
as a condition to the approval of the
Five-Year Plan and the extension of
any WIA Title I financial assistance
under the Plan. The State also must
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Office of the Secretary of Labor
§ 37.25
certify that it has developed and maintains a Methods of Administration
under § 37.54.
§ 37.21 How long will the recipient’s
obligation under the assurance last,
and how broad is the obligation?
(a) Where the WIA 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 WIA 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 WIA Title I financial
assistance is extended.
§ 37.22 How must covenants be used in
connection with this part?
(a) Where WIA 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 § 37.21.
(b) Where no Federal transfer of real
property or interest therein from the
Federal Government is involved, but
real property or an interest therein is
acquired or improved under a program
of WIA Title I financial assistance, the
recipient must include the covenant
described in paragraph (a) of this section in the instrument effecting or re-
cording 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
§ 37.23 Who must designate an Equal
Opportunity Officer?
Every recipient must designate an
Equal Opportunity Officer (‘‘EO Officer’’), except small recipients and service providers, as defined in § 37.4. The
responsibilities of small recipients and
service providers are described in
§§ 37.27 and 37.28.
§ 37.24 Who is eligible to serve as an
Equal Opportunity Officer?
A senior-level employee of the recipient should be appointed as the recipient’s Equal Opportunity Officer. Depending upon the size of the recipient,
the size of the recipient’s WIA Title Ifinancially assisted programs or activities, and the number of applicants, registrants, and participants served by the
recipient, the EO Officer may, or may
not, be assigned other duties. However,
he or she must not have other responsibilities or activities that create a
conflict, or the appearance of a conflict, with the responsibilities of an EO
Officer.
§ 37.25 What are the responsibilities of
an Equal Opportunity Officer?
An Equal Opportunity Officer is responsible for coordinating a recipient’s
obligations under this part. Those responsibilities include, but are not limited to:
(a) Serving as the recipient’s liaison
with CRC;
(b) Monitoring and investigating the
recipient’s activities, and the activities
of the entities that receive WIA Title I
funds from the recipient, to make sure
that the recipient and its subrecipients
are not violating their nondiscrimination and equal opportunity obligations
under WIA Title I and this part;
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§ 37.26
29 CFR Subtitle A (7–1–01 Edition)
(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 §§ 37.76
through 37.79, and making sure that
those procedures are followed;
(e) Reporting directly to the appropriate official (including, but not limited to, the State WIA Director, Governor’s WIA Liaison, Job Corps Center
Director, SESA Administrator, or
LWIA grant recipient) about equal opportunity matters;
(f) Undergoing training (at the recipient’s expense) to maintain competency,
if the Director requires him or her,
and/or his or her staff, to do so; and
(g) If applicable, overseeing the development and implementation of the
recipient’s Methods of Administration
under § 37.54.
§ 37.26 What are a recipient’s obligations relating to the Equal Opportunity Officer?
A recipient has the following obligations:
(a) Making the Equal Opportunity Officer’s name, and his or her position
title, address, and telephone number
(voice and TDD/TTY) public;
(b) Ensuring that the EO Officer’s
identity and contact information appears on all internal and external communications about the recipient’s nondiscrimination and equal opportunity
programs;
(c) Assigning sufficient staff and resources to the Equal Opportunity Officer, and providing him or her with the
necessary support of top management,
to ensure compliance with the nondiscrimination and equal opportunity
provisions of WIA and this part; and
(d) Ensuring that the EO Officer and
his/her staff are afforded the opportunity to receive the training necessary and appropriate to maintain
competency.
§ 37.27 What are the obligations of
small recipients regarding Equal
Opportunity Officers?
Although small recipients do not
need to designate Equal Opportunity
Officers who have the full range of responsibilities listed above, they must
designate an individual who will be responsible for developing and publishing
of complaint procedures, and the processing of complaints, as explained in
§§ 37.76 through 37.79.
§ 37.28 What are the obligations of
service providers regarding Equal
Opportunity Officers?
Service providers, as defined in § 37.4,
are not required to designate an Equal
Opportunity Officer. The obligation for
ensuring service provider compliance
with the nondiscrimination and equal
opportunity provisions of WIA and this
part rests with the Governor or LWIA
grant recipient, as specified in the
State’s Methods of Administration.
NOTICE AND COMMUNICATION
§ 37.29 What are a recipient’s obligations to disseminate its equal opportunity policy?
(a) A recipient must provide initial
and continuing notice that it does not
discriminate on any prohibited ground.
This notice must be provided to:
(1) Registrants, applicants, and eligible applicants/registrants;
(2) Participants;
(3) Applicants for employment and
employees;
(4) Unions or professional organizations that hold collective bargaining or
professional agreements with the recipient;
(5) Subrecipients that receive WIA
Title I funds from the recipient; and
(6) Members of the public, including
those with impaired vision or hearing.
(b) As provided in § 37.9, the recipient
must take appropriate steps to ensure
that communications with individuals
with disabilities are as effective as
communications with others.
§ 37.30 What specific wording must the
notice contain?
The notice must contain the following specific wording:
EQUAL OPPORTUNITY IS THE LAW
It is against the law for this recipient
of Federal financial assistance to discriminate on the following bases:
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Office of the Secretary of Labor
§ 37.34
against any individual in the United
States, on the basis of race, color, religion, sex, national origin, age, disability, political affiliation or belief;
and
against any beneficiary of programs
financially assisted under Title I of the
Workforce Investment Act of 1998
(WIA), on the basis of the beneficiary’s
citizenship/status as a lawfully admitted immigrant authorized to work in
the United States, or his or her participation in any WIA 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 WIA Title I-financially assisted program or activity;
providing opportunities in, or treating any person with regard to, such a
program or activity; or
making employment decisions in the
administration of, or in connection
with, such a program or activity.
WHAT TO DO IF YOU BELIEVE YOU HAVE
EXPERIENCED DISCRIMINATION
If you think that you have been subjected to discrimination under a WIA
Title I-financially assisted program or
activity, you may file a complaint
within 180 days from the date of the alleged violation with either:
the recipient’s Equal Opportunity Officer (or the person whom the recipient
has designated for this purpose); or
the Director, Civil Rights Center
(CRC), U.S. Department of Labor, 200
Constitution Avenue NW, Room N–4123,
Washington, DC 20210.
If you file your complaint with the
recipient, you must wait either until
the recipient issues a written Notice of
Final Action, or until 90 days have
passed (whichever is sooner), before filing with the Civil Rights Center (see
address above).
If the recipient does not give you a
written Notice of Final Action within
90 days of the day on which you filed
your complaint, you do not have to
wait for the recipient to issue that Notice before filing a complaint with
CRC. However, you must file your CRC
complaint within 30 days of the 90-day
deadline (in other words, within 120
days after the day on which you filed
your complaint with the recipient).
If the recipient does give you a written Notice of Final Action on your
complaint, but you are dissatisfied
with the decision or resolution, you
may file a complaint with CRC. You
must file your CRC complaint within 30
days of the date on which you received
the Notice of Final Action.
§ 37.31 Where must the notice required
by §§ 37.29 and 37.30 be published?
(a) At a minimum, the notice required by §§ 37.29 and 37.30 must be:
(1) Posted prominently, in reasonable
numbers and places;
(2) Disseminated in internal memoranda and other written or electronic
communications;
(3) Included in handbooks or manuals; and
(4) Made available to each participant, and made part of each participant’s file.
(b) The notice must be provided in
appropriate formats to individuals with
visual impairments. Where notice has
been given in an alternate format to a
participant with a visual impairment,
a record that such notice has been
given must be made a part of the participant’s file.
§ 37.32 When must the notice required
by §§ 37.29 and 37.30 be provided?
The notice required by §§ 37.29 and
37.30 must be initially 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.
§ 37.33 Who is responsible for meeting
the notice requirement with respect
to service providers?
The Governor or the LWIA grant recipient, as determined by the Governor
and as provided in that State’s Methods of Administration, will be responsible for meeting the notice requirement provided in Sections 37.29 and
37.30 with respect to a State’s service
providers.
§ 37.34 What type of notice must a recipient include in publications,
broadcasts, and other communications?
(a) Recipients must indicate that the
WIA Title I-financially assisted program or activity in question is an
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§ 37.35
29 CFR Subtitle A (7–1–01 Edition)
‘‘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 WIA or the requirements for participation by recipients
and participants. Where such materials
indicate that the recipient may be
reached by telephone, the materials
must state the telephone number of the
TDD/TTY or relay service used by the
recipient, as required by § 37.9(c).
(b) Recipients that publish or broadcast program information in the news
media must ensure that such publications and broadcasts state that the
WIA Title I-financially assisted program or activity in question is an
equal opportunity employer/program
(or otherwise indicate that discrimination in the WIA Title I-financially assisted program or activity is prohibited
by Federal law), and indicate that auxiliary aids and services are available
upon request to individuals with disabilities.
(c) A recipient must not communicate any information that suggests,
by text or illustration, that the recipient treats beneficiaries, registrants,
applicants, participants, employees or
applicants for employment differently
on any prohibited ground specified in
§ 37.5, except as such treatment is otherwise permitted under Federal law or
this part.
§ 37.35 What are a recipient’s responsibilities to provide services and information in languages other than
English?
(a) A significant number or proportion of the population eligible to be
served, or likely to be directly affected,
by a WIA Title I-financially assisted
program or activity may need services
or information in a language other
than English in order to be effectively
informed about, or able to participate
in, the program or activity. Where such
a significant number or proportion exists, a recipient must take the following actions:
(1) Consider:
(i) The scope of the program or activity, and
(ii) The size and concentration of the
population that needs services or information in a language other than
English; and
(2) Based on those considerations,
take reasonable steps to provide services and information in appropriate
languages. This information must include the initial and continuing notice
required under §§ 37.29 and 37.30, and all
information that is communicated
under § 37.34.
(b) In circumstances other than those
described in paragraph (a) of this section, a recipient should nonetheless
make reasonable efforts to meet the
particularized language needs of limited-English-speaking individuals who
seek services or information from the
recipient.
§ 37.36 What responsibilities does a recipient have to communicate information during orientations?
During each presentation to orient
new participants, new employees, and/
or the general public to its WIA Title Ifinancially assisted program or activity, a recipient must include a discussion of rights under the nondiscrimination and equal opportunity provisions
of WIA and this part, including the
right to file a complaint of discrimination with the recipient or the Director.
DATA AND INFORMATION COLLECTION AND
MAINTENANCE
§ 37.37 What are a recipient’s responsibilities to collect and maintain
data and other information?
(a) The Director will not require submission of data that can be obtained
from existing reporting requirements
or sources, including those of other
agencies, if the source is known and
available to the Director.
(b)(1) Each recipient must collect
such data and maintain such records,
in accordance with procedures prescribed by the Director, as the Director
finds necessary to determine whether
the recipient has complied or is complying with the nondiscrimination and
equal opportunity provisions of WIA or
this part. The system and format in
which the records and data are kept
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Office of the Secretary of Labor
§ 37.38
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 WIA and this part.
(2) Such records must include, but
are not limited to, records on applicants, registrants, eligible applicants/
registrants, participants, terminees,
employees, and applicants for employment. Each recipient must record the
race/ethnicity, sex, age, and where
known, disability status, of every applicant, registrant, eligible applicant/
registrant, participant, terminee, applicant for employment, and employee.
Such information must be stored in a
manner that ensures confidentiality,
and must be used only for the purposes
of recordkeeping and reporting; determining eligibility, where appropriate,
for WIA Title I-financially assisted
programs or activities; determining the
extent to which the recipient is operating its WIA Title I-financially assisted program or activity in a nondiscriminatory manner; or other use
authorized by law.
(c) Each recipient must maintain,
and submit to CRC upon request, a log
of complaints filed with it that allege
discrimination on the ground(s) of
race, color, religion, sex, national origin, age, disability, political affiliation
or belief, citizenship, and/or participation in a WIA Title I-financially assisted program or activity. The log
must include: the name and address of
the complainant; the ground of the
complaint; a description of the complaint; the date the complaint was
filed; the disposition and date of disposition of the complaint; and other
pertinent information. Information
that could lead to identification of a
particular individual as having filed a
complaint must be kept confidential.
(d) Where designation of individuals
by race or ethnicity is required, the
guidelines of the Office of Management
and Budget must be used.
(e) A service provider’s responsibility
for collecting and maintaining the information required under this section
may be assumed by the Governor or
LWIA grant recipient, as provided in
the State’s Methods of Administration.
§ 37.38 What information must grant
applicants and recipients provide
to CRC?
In addition to the information which
must be collected, maintained, and,
upon request, submitted to CRC under
§ 37.37:
(a) Each grant applicant and recipient must promptly notify the Director
when any administrative enforcement
actions or lawsuits are filed against it
alleging discrimination on the ground
of race, color, religion, sex, national
origin, age, disability, political affiliation or belief, and for beneficiaries
only, citizenship or participation in a
WIA Title I-financially assisted program or activity. This notification
must include:
(1) The names of the parties to the
action or lawsuit;
(2) The forum in which each case was
filed; and
(3) The relevant case numbers.
(b) Each grant applicant (as part of
its application) and recipient (as part
of a compliance review conducted
under Section 37.63, or monitoring activity carried out under § 37.65) must
provide the following information:
(1) The name of any other Federal
agency that conducted a civil rights
compliance review or complaint investigation, and that found the grant applicant or recipient to be in noncompliance, during the two years before the
grant application was filed or CRC
began its examination; and
(2) Information about any administrative enforcement actions or lawsuits
that alleged discrimination on any protected basis, and that were filed
against the grant applicant or recipient during the two years before the application or renewal application, compliance review, or monitoring activity.
This information must include:
(i) The names of the parties;
(ii) The forum in which each case was
filed; and
(iii) The relevant case numbers.
(c) At the discretion of the Director,
grant applicants and recipients may be
required to provide, in a timely manner, any information and data necessary to investigate complaints and
conduct compliance reviews on grounds
prohibited under the nondiscrimination
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§ 37.39
29 CFR Subtitle A (7–1–01 Edition)
and equal opportunity provisions of
WIA 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 WIA or
this part.
(e) At the discretion of the Director,
grant applicants may be required to
submit, in a timely manner, the particularized information necessary to
determine whether or not the grant applicant, if financially assisted, would
be able to comply with the nondiscrimination and equal opportunity
provisions of WIA 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.
§ 37.39 How long must grant applicants and recipients maintain the
records required under this part?
(a) Each recipient must maintain the
following records for a period of not
less than three years from the close of
the applicable program year:
(1) The records of applicants, registrants,
eligible
applicants/registrants, participants, terminees, employees, and applicants for employment; and
(2) Such other records as are required
under this part or by the Director.
(b) Records regarding complaints and
actions taken on the complaints must
be maintained for a period of not less
than three years from the date of resolution of the complaint.
§ 37.40 What access to sources of information must grant applicants and
recipients provide the Director?
(a) Each grant applicant and recipient must permit access by the Director
during normal business hours to its
premises and to its employees and participants, to the extent that such individuals are on the premises during the
course of the investigation, for the purpose of conducting complaint investigations, compliance reviews, monitoring activities associated with a
State’s development and implementa-
tion of a Methods of Administration,
and inspecting and copying such books,
records, accounts and other materials
as may be pertinent to ascertain compliance with and ensure enforcement of
the nondiscrimination and equal opportunity provisions of WIA 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 WIA 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.
§ 37.41 What responsibilities do grant
applicants, recipients, and the Department have to maintain the confidentiality of the information collected?
The identity of any individual who
furnishes information relating to, or
assisting in, an investigation or a compliance review, including the identity
of any individual who files a complaint, must be kept confidential to the
extent possible, consistent with a fair
determination of the issues. An individual whose identity it is necessary to
disclose must be protected from retaliation (see § 37.11).
§ 37.42 What are a recipient’s responsibilities under this part to provide
universal access to WIA Title I-financially assisted programs and activities?
Recipients must take appropriate
steps to ensure that they are providing
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Office of the Secretary of Labor
§ 37.54
universal access to their WIA Title I-financially assisted programs and activities. These steps should involve reasonable efforts to include members of both
sexes, various racial and ethnic groups,
individuals with disabilities, and individuals in differing age groups. Such
efforts may include, but are not limited to:
(a) Advertising the recipient’s programs and/or activities in media, such
as newspapers or radio programs, that
specifically target various populations;
(b) Sending notices about openings in
the recipient’s programs and/or activities to schools or community service
groups that serve various populations;
and
(c) Consulting with appropriate community service groups about ways in
which the recipient may improve its
outreach and service to various populations.
Subpart C—Governor’s Responsibilities to Implement the
Nondiscrimination and Equal
Opportunity Requirements of
WIA
§ 37.50 To whom does this subpart
apply?
This subpart applies to State Programs as defined in § 37.4. However, the
provisions of § 37.52(b) do not apply to
State Employment Security Agencies
(SESAs), because the Governor’s liability for any noncompliance on the part
of a SESA cannot be waived.
§ 37.51 What are a Governor’s oversight responsibilities?
The Governor is responsible for oversight of all WIA Title I-financially assisted State programs. This responsibility includes ensuring compliance
with the nondiscrimination and equal
opportunity provisions of WIA and this
part, and negotiating, where appropriate, with a recipient to secure voluntary compliance when noncompliance is found under § 37.95(b).
§ 37.52 To what extent may a Governor
be liable for the actions of a recipient he or she has financially assisted under WIA Title I?
(a) The Governor and the recipient
are jointly and severally liable for all
violations of the nondiscrimination
and equal opportunity provisions of
WIA and this part by the recipient, unless the Governor has:
(1) Established and adhered to a
Methods of Administration, under Section 37.54, designed to give reasonable
guarantee of the recipient’s compliance
with such provisions;
(2) Entered into a written contract
with the recipient that clearly establishes the recipient’s obligations regarding nondiscrimination and equal
opportunity;
(3) Acted with due diligence to monitor the recipient’s compliance with
these provisions; and
(4) Taken prompt and appropriate
corrective action to effect compliance.
(b) If the Director determines that
the Governor has demonstrated substantial compliance with the requirements of paragraph (a) of this section,
he or she may recommend to the Secretary that the imposition of sanctions
against the Governor be waived and
that sanctions be imposed only against
the noncomplying recipient.
§ 37.53 What are a Governor’s oversight responsibilities regarding recipients’ recordkeeping?
The Governor must ensure that recipients collect and maintain records
in a manner consistent with the provisions of § 37.37 and any procedures prescribed by the Director under § 37.37(b).
The Governor must further ensure that
recipients are able to provide data and
reports in the manner prescribed by
the Director.
§ 37.54 What are a Governor’s obligations to develop and maintain a
Methods of Administration?
(a) (1) Each Governor must establish
and adhere to a Methods of Administration for State programs as defined
in § 37.4. In those States in which one
agency contains both SESA or unemployment insurance and WIA Title I-financially assisted programs, the Governor should develop a combined Methods of Administration.
(2) Each Methods of Administration
must be designed to give a reasonable
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§ 37.54
29 CFR Subtitle A (7–1–01 Edition)
guarantee that all recipients will comply, and are complying, with the nondiscrimination and equal opportunity
provisions of WIA and this part.
(b) The Methods of Administration
must be:
(1) In writing, addressing each requirement of § 37.54(d) with narrative
and documentation;
(2) Reviewed and updated as required
in § 37.55; and
(3) Signed by the Governor.
(c) [Reserved]
(d) At a minimum, each Methods of
Administration must:
(1) Describe how the State programs
and recipients have satisfied the requirements of the following regulations:
(i) Sections 37.20 through 37.22 (assurances);
(ii) Sections 37.23 through 37.28
(Equal Opportunity Officers);
(iii) Sections 37.29 through 37.36 (Notice and Communication);
(iv) Sections 37.37 through 37.41 (Data
and Information Collection and Maintenance);
(v) Section 37.42 (Universal Access);
(vi) Section 37.53 (Governor’s Oversight Responsibilities Regarding Recipients’ Recordkeeping); and
(vii) Sections 37.76 through 37.79
(Complaint Processing Procedures);
and
(2) Include the following additional
elements:
(i) A system for determining whether
a grant applicant, if financially assisted, and/or a training provider, if selected as eligible under section 122 of
the Act, is likely to conduct its WIA
Title I—financially assisted programs
or activities in a nondiscriminatory
way, and to comply with the regulations in this part;
(ii) A system for periodically monitoring the compliance of recipients
with WIA section 188 and this part, including a determination as to whether
each recipient is conducting its WIA
Title I—financially assisted program or
activity in a nondiscriminatory way.
At a minimum, each periodic monitoring review required by this paragraph must include:
(A) A statistical or other quantifiable
analysis of records and data kept by
the recipient under § 37.37, including
analyses by race/ethnicity, sex, age,
and disability status;
(B) An investigation of any significant differences identified in paragraph
(A) of this section in participation in
the programs, activities, or employment provided by the recipient, to determine whether these differences appear to be caused by discrimination.
This investigation must be conducted
through review of the recipient’s
records and any other appropriate
means; and
(C) An assessment to determine
whether the recipient has fulfilled its
administrative obligations under section 188 or this part (for example, recordkeeping, notice and communication) and any duties assigned to it
under the MOA;
(iii) A review of recipient policy
issuances to ensure they are nondiscriminatory;
(iv) A system for reviewing recipients’ job training plans, contracts, assurances, and other similar agreements
to ensure that they are both nondiscriminatory and contain the required
language
regarding
nondiscrimination and equal opportunity;
(v) Procedures for ensuring that recipients comply with the requirements
of Section 504 and this part with regard
to individuals with disabilities;
(vi) A system of policy communication and training to ensure that EO Officers and members of the recipients’
staffs who have been assigned responsibilities under the nondiscrimination
and equal opportunity provisions of
WIA or this part are aware of and can
effectively carry out these responsibilities;
(vii) Procedures for obtaining prompt
corrective action or, as necessary, applying sanctions when noncompliance
is found; and
(viii) Supporting documentation to
show that the commitments made in
the Methods of Administration have
been and/or are being carried out. This
supporting documentation includes,
but is not limited to:
(A) policy and procedural issuances
concerning required elements of the
Methods of Administration;
(B) copies of monitoring instruments
and instructions;
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Office of the Secretary of Labor
§ 37.62
(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
§§ 37.25(f) and 37.26(c), is planned and/or
has been carried out;
(E) reports of monitoring reviews and
reports of follow-up actions taken
under those reviews where violations
have been found, including, where appropriate, sanctions; and
(F) copies of any notices made under
§§ 37.29 through 37.36.
§ 37.55 When must the Governor carry
out his or her obligations with regard to the Methods of Administration?
(a) Within 180 days of either the date
on which this interim final rule is effective, or the date on which the Department gives final approval to a
State’s Five-Year Plan, whichever is
later, a Governor must:
(1) Develop and implement a Methods
of Administration consistent with the
requirements of this part, and
(2) Submit a copy of the Methods of
Administration to the Director.
(b) The Governor must promptly update the Methods of Administration
whenever necessary, and must notify
the Director in writing at the time
that any such updates are made.
(c) Every two years from the date on
which the initial MOA is submitted to
the Director under § 37.55(a)(2), the
Governor must review the Methods of
Administration and the manner in
which it has been implemented, and determine whether any changes are necessary in order for the State to comply
fully and effectively with the nondiscrimination and equal opportunity
provisions of WIA and this part.
(1) If any such changes are necessary,
the Governor must make the appropriate changes and submit them, in
writing, to the Director.
(2) If the Governor determines that
no such changes are necessary, s/he
must certify, in writing, to the Director that the Methods of Administration
previously submitted continues in effect.
Subpart D—Compliance
Procedures
§ 37.60 How does the Director evaluate
compliance with the nondiscrimination and equal opportunity provisions of WIA and this part?
From time to time, the Director may
conduct pre-approval compliance reviews of grant applicants for, and postapproval compliance reviews of recipients of, WIA Title I financial assistance, to determine compliance with
the nondiscrimination and equal opportunity provisions of WIA and this part.
Reviews may focus on one or more specific programs or activities, or one or
more issues within a program or activity. The Director may also investigate
and resolve complaints alleging violations of the nondiscrimination and
equal opportunity provisions of WIA
and this part.
§ 37.61 Is there authority to issue subpoenas?
Yes, section 183(c) of WIA authorizes
the issuance of subpoenas. 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.
The subpoena may require the appearance of witnesses, and the production
of documents, from any place in the
United States, at any designated time
and place.
COMPLIANCE REVIEWS
§ 37.62 What are the authority and
procedures for conducting pre-approval compliance reviews?
(a) As appropriate and necessary to
ensure compliance with the nondiscrimination and equal opportunity
provisions of WIA or this part, the Director may review any application, or
class of applications, for Federal financial assistance under Title I of WIA, before and as a condition of their approval. The basis for such review may
be the assurance specified in § 37.20, information and reports submitted by
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§ 37.63
29 CFR Subtitle A (7–1–01 Edition)
the grant applicant under this part or
guidance published by the Director,
and any relevant records on file with
the Department.
(b) Where the Director determines
that the grant applicant for Federal financial assistance under WIA Title I, if
financially assisted, might not comply
with the nondiscrimination and equal
opportunity requirements of WIA or
this part, the Director must:
(1) Notify, in a timely manner, the
Departmental grantmaking agency and
the Assistant Attorney General of the
findings of the pre-approval compliance
review; and
(2) Issue a Letter of Findings. The
Letter of Findings must advise the
grant applicant, in writing, of:
(i) The preliminary findings of the review;
(ii) The proposed remedial or corrective action under Section 37.94 and the
time within which the remedial or corrective action should be completed;
(iii) Whether it will be necessary for
the grant applicant to enter into a
written Conciliation Agreement as described in §§ 37.95 and 37.97; and
(iv) The opportunity to engage in voluntary compliance negotiations.
(c) If a grant applicant has agreed to
certain remedial or corrective actions
in order to receive WIA Title I-funded
Federal financial assistance, the Department must ensure that the remedial or corrective actions have been
taken, or that a Conciliation Agreement has been entered into, before approving the award of further assistance
under WIA 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 §§ 37.98 through 37.100.
§ 37.63 What are the authority and
procedures for conducting post-approval compliance reviews?
(a) The Director may initiate a postapproval compliance review of any recipient to determine compliance with
the nondiscrimination and equal opportunity provisions of WIA 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 Depart-
mental 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 §§ 37.99 and 37.100, to make
a documentary or other submission
that explains, validates or otherwise
addresses the practices under review.
(c) The Director may conduct postapproval reviews using such techniques
as desk audits and on-site reviews.
§ 37.64 What procedures must the Director follow when CRC has completed a post-approval compliance
review?
(a) Where, as the result of a post-approval review, the Director has made a
finding of noncompliance, he or she
must issue a Letter of Findings. This
Letter must advise the recipient, in
writing, of:
(1) The preliminary findings of the
review;
(2) Where appropriate, the proposed
remedial or corrective action to be
taken, and the time by which such action should be completed, as provided
in § 37.94;
(3) Whether it will be necessary for
the recipient to enter into a written assurance and/or Conciliation Agreement, as provided in §§ 37.96 and 37.97;
and
(4) The opportunity to engage in voluntary compliance negotiations.
(b) Where no violation is found, the
recipient must be so informed in writing.
§ 37.65 What is the Director’s authority
to monitor the activities of a Governor?
(a) The Director may periodically review the adequacy of the Methods of
Administration established by a Governor, as well as the adequacy of the
Governor’s performance under the
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Office of the Secretary of Labor
§ 37.71
Methods of Administration, to determine compliance with the requirements of §§ 37.50 through 37.55. The Director may review the Methods of Administration during a compliance review under §§ 37.62 and 37.63, or at another time.
(b) Nothing in this subpart limits or
precludes the Director from monitoring
directly any WIA Title I recipient or
from investigating any matter necessary to determine a recipient’s compliance with the nondiscrimination and
equal opportunity provisions of WIA or
this part.
§ 37.66 What happens if a recipient
fails to submit requested data,
records, and/or information, or fails
to provide CRC with the required
access?
The Director may issue a Notice to
Show Cause to a recipient failing to
comply with the requirements of this
part, where such failure results in the
inability of the Director to make a
finding. Such a failure includes, but is
not limited to, the recipient’s failure
or refusal to:
(a) Submit requested information,
records, and/or data within 30 days of
receiving a Notification Letter;
(b) Submit, in a timely manner, information, records, and/or data requested during a compliance review,
complaint investigation, or other action to determine a recipient’s compliance with the nondiscrimination and
equal opportunity provisions of WIA or
this part; or
(c) Provide CRC access in a timely
manner to a recipient’s premises,
records, or employees during a compliance review, as required in § 37.40.
§ 37.67 What information must a Notice to Show Cause contain?
(a) A Notice to Show Cause must contain:
(1) A description of the violation and
a citation to the pertinent nondiscrimination or equal opportunity
provision(s) of WIA and this part;
(2) The corrective action necessary to
achieve compliance or, as may be appropriate, the concepts and principles
of acceptable corrective or remedial action and the results anticipated; and
(3) A request for a written response
to the findings, including commitments to corrective action or the presentation of opposing facts and evidence.
(b) A Notice to Show Cause must give
the recipient 30 days to show cause why
enforcement proceedings under the
nondiscrimination and equal opportunity provisions of WIA or this part
should not be instituted.
§ 37.68 How may a recipient show
cause why enforcement proceedings
should not be instituted?
A recipient may show cause why enforcement proceedings should not be
instituted by, among other means:
(a) Correcting the violation(s) that
brought about the Notice to Show
Cause and entering into a written assurance and/or entering into a Conciliation Agreement, as appropriate,
under §§ 37.95 through 37.97;
(b) Demonstrating that CRC does not
have jurisdiction; or
(c) Demonstrating that the violation
alleged by CRC did not occur.
§ 37.69 What happens if a recipient
fails to show cause?
If the recipient fails to show cause
why enforcement proceedings should
not be initiated, the Director must follow the enforcement procedures outlined in §§ 37.99 and 37.100.
COMPLAINT PROCESSING PROCEDURES
§ 37.70 Who may file a complaint concerning discrimination connected
with WIA Title I?
Any person who believes that either
he or she, or any specific class of individuals, has been or is being subjected
to discrimination prohibited by WIA or
this part, may file a written complaint,
either by him/herself or through a representative.
§ 37.71 Where
filed?
may
a
complaint
be
A complainant may file a complaint
with either the recipient or the Director. Complaints filed with the Director
should be sent to the address listed in
the notice in § 37.30.
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§ 37.72
29 CFR Subtitle A (7–1–01 Edition)
§ 37.72 When
filed?
must
a
complaint
be
Generally, a complaint must be filed
within 180 days of the alleged discrimination. However, for good cause shown,
the Director may extend the filing
time. The time period for filing is for
the administrative convenience of
CRC, and does not create a defense for
the respondent.
§ 37.73 What information must a complaint contain?
Each complaint must be filed in writing, and must contain the following information:
(a) The complainant’s name and address (or another means of contacting
the complainant);
(b) The identity of the respondent
(the individual or entity that the complainant alleges is responsible for the
discrimination);
(c) A description of the complainant’s
allegations. This description must include enough detail to allow the Director or the recipient, as applicable, to
decide whether:
(i) CRC or the recipient, as applicable, has jurisdiction over the complaint;
(ii) The complaint was filed in time;
and
(iii) The complaint has apparent
merit; in other words, whether the
complainant’s allegations, if true,
would violate any of the nondiscrimination and equal opportunity
provisions of WIA or this part; and
(d) The complainant’s signature or
the signature of the complainant’s authorized representative.
§ 37.74 Are there any forms that a complainant may use to file a complaint?
Yes. A complainant may file a complaint by completing and submitting
CRC’s Complaint Information and Privacy Act Consent Forms, which may be
obtained either from the recipient’s EO
Officer, or from CRC at the address
listed in the notice contained in § 37.30.
§ 37.75 Is there a right of representation in the complaint process?
Yes. Both the complainant and the
respondent have the right to be rep-
resented by an attorney or other individual of their choice.
§ 37.76 What are the required elements
of a recipient’s discrimination complaint processing procedures?
(a) The procedures that a recipient
adopts and publishes must provide that
the recipient will issue a written Notice of Final Action on discrimination
complaints within 90 days of the date
on which the complaint is filed.
(b) At a minimum, the procedures
must include the following elements:
(1) Initial, written notice to the complainant that contains the following
information:
(i) An acknowledgment that the recipient has received the complaint, and
(ii) Notice that the complainant has
the right to be represented in the complaint process;
(2) A written statement of the
issue(s), provided to the complainant,
that includes the following information:
(i) A list of the issues raised in the
complaint, and
(ii) For each such issue, a statement
whether the recipient will accept the
issue for investigation or reject the
issue, and the reasons for each rejection;
(3) A period for fact-finding or investigation of the circumstances underlying the complaint;
(4) A period during which the recipient attempts to resolve the complaint.
The methods available to resolve the
complaint must include alternative
dispute resolution (ADR), as described
in paragraph (c) of this section
(5) A written Notice of Final Action,
provided to the complainant within 90
days of the date on which the complaint was filed, that contains the following information:
(i) For each issue raised in the complaint, a statement of either:
(A) The recipient’s decision on the
issue and an explanation of the reasons
underlying the decision, or
(B) A description of the way the parties resolved the issue; and
(ii) Notice that the complainant has
a right to file a complaint with CRC
within 30 days of the date on which the
Notice of Final Action is issued if he or
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Office of the Secretary of Labor
§ 37.82
she is dissatisfied with the recipient’s
final action on the complaint.
(c) The procedures the recipient
adopts must provide for alternative
dispute resolution (ADR). The recipient’s ADR procedures must provide
that:
(1) The choice whether to use ADR or
the customary process rests with the
complainant;
(2) A party to any agreement reached
under ADR may file a complaint with
the Director in the event the agreement is breached. In such circumstances, the following rules will
apply:
(i) The non-breaching party may file
a complaint with the Director within
30 days of the date on which the nonbreaching party learns of the alleged
breach;
(ii) The Director must evaluate the
circumstances to determine whether
the agreement has been breached. If he
or she determines that the agreement
has been breached, the complainant
may file a complaint with CRC based
upon his/her original allegation(s), and
the Director will waive the time deadline for filing such a complaint.
(3) If the parties do not reach an
agreement under ADR, the complainant may file a complaint with the Director as described in §§ 37.71 through
37.74.
§ 37.77 Who is responsible for developing and publishing complaint
processing procedures for service
providers?
The Governor or the LWIA grant recipient, as provided in the State’s
Methods of Administration, must develop and publish, on behalf of its service providers, the complaint processing
procedures required in § 37.76. The service providers must then follow those
procedures.
§ 37.78 Does a recipient have any special obligations in cases in which
the recipient determines that it has
no jurisdiction over a complaint?
Yes. If a recipient determines that it
does not have jurisdiction over a complaint, it must notify the complainant,
in writing, immediately. This Notice of
Lack of Jurisdiction must include:
(a) A statement of the reasons for
that determination, and
(b) Notice that the complainant has a
right to file a complaint with CRC
within 30 days of the date on which the
complainant receives the Notice.
§ 37.79 If, before the 90-day period has
expired, a recipient issues a Notice
of Final Action with which the complainant is dissatisfied, how long
does the complainant have to file a
complaint with the Director?
If, during the 90-day period, the recipient issues its Notice of Final Action, but the complainant is dissatisfied with the recipient’s decision on the
complaint, the complainant or his/her
representative may file a complaint
with the Director within 30 days after
the date on which the complainant receives the Notice.
§ 37.80 What happens if a recipient
fails to issue a Notice of Final Action within 90 days of the date on
which a complaint was filed?
If, by the end of 90 days from the date
on which the complainant filed the
complaint, the recipient has failed to
issue a Notice of Final Action, the
complainant or his/her representative
may file a complaint with the Director
within 30 days of the expiration of the
90-day period. In other words, the complaint must be filed with the Director
within 120 days of the date on which
the complaint was filed with the recipient.
§ 37.81 Are there any circumstances
under which the Director may extend the time limit for filing a complaint with him or her?
Yes. The Director may extend the 30day time limit:
(a) If the recipient does not include
in its Notice of Final Action the required notice about the complainant’s
right to file with the Director, as described in § 37.76(b)(5)(ii); or
(b) For other good cause shown.
The complainant has the burden of
proving to the Director that the time
limit should be extended.
§ 37.82 Does the Director accept every
complaint for resolution?
No. The Director must determine
whether CRC will accept a particular
complaint for resolution. For example,
a complaint need not be accepted if:
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§ 37.83
29 CFR Subtitle A (7–1–01 Edition)
(a) It has not been timely filed;
(b) CRC has no jurisdiction over the
complaint; or
(c) CRC has previously decided the
matter.
§ 37.83 What happens if a complaint
does not contain enough information?
(a) If a complaint does not contain
enough information, the Director must
try to get the needed information from
the complainant.
(b) The Director may close the complainant’s file, without prejudice, if:
(1) The Director makes reasonable efforts to try to find the complainant,
but is unable to reach him or her; or
(2) The complainant does not provide
the needed information to CRC within
the time specified in the request for
more information.
(c) If the Director closes the complainant’s file, he or she must send
written notice to the complainant’s
last known address.
§ 37.84 What happens if CRC does not
have jurisdiction over a complaint?
If CRC does not have jurisdiction
over a complaint, the Director must:
(a) Notify the complainant and explain why the complaint falls outside
the coverage of the nondiscrimination
and equal opportunity provisions of
WIA or this part; and
(b) Where possible, transfer the complaint to an appropriate Federal, State
or local authority.
§ 37.85 Are there any other circumstances in which the Director
will send a complaint to another authority?
Yes. The Director refers complaints
to other agencies in the following circumstances:
(a) Where the complaint alleges discrimination based on age, and the complaint falls within the jurisdiction of
the Age Discrimination Act of 1975, as
amended, then the Director must refer
the complaint, in accordance with the
provisions of 45 CFR 90.43(c)(3).
(b) Where the only allegation in the
complaint is a charge of individual employment discrimination that is covered both by WIA or this part and by
one or more of the laws listed below,
then the complaint is a ‘‘joint complaint,’’ and the Director may refer it
to the EEOC for investigation and conciliation under the procedures described in 29 CFR part 1640 or 1691, as
appropriate. The relevant laws are:
(1) Title VII of the Civil Rights Act of
1964, as amended (42 U.S.C. 2000e to
2000e–17);
(2) The Equal Pay Act of 1963, as
amended (29 U.S.C. 206(d));
(3) The Age Discrimination in Employment Act of 1976, as amended (29
U.S.C. 621, et seq.); and
(4) Title I of the Americans with Disabilities Act of 1990, as amended (42
U.S.C. 12101 et seq.).
(c) Where the complaint alleges discrimination by an entity that operates
a program or activity financially assisted by a Federal grantmaking agency other than the Department, but that
participates as a partner in a One-Stop
delivery system, the following procedures apply:
(1) Where the complaint alleges discrimination on a basis that is prohibited both by Section 188 of WIA 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 WIA, 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 WIA
Title I-financially assisted program or
activity.
(d) Where the Director makes a referral under this section, he or she must
notify the complainant and the respondent about the referral.
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Office of the Secretary of Labor
§ 37.92
§ 37.86 What must the Director do if he
or she determines that a complaint
will not be accepted?
If a complaint will not be accepted,
the Director must notify the complainant, in writing, about that fact, and
provide the complainant his/her reasons for making that determination.
§ 37.87 What must the Director do if he
or she determines that a complaint
will be accepted?
If the Director accepts the complaint
for resolution, he or she must notify
the complainant, the respondent, and
the grantmaking agency. The notice
must:
(a) State that the complaint will be
accepted,
(b) Identify the issues over which
CRC has accepted jurisdiction; and
(c) Explain the reasons why any
issues were rejected.
§ 37.88 Who may contact CRC about a
complaint?
Both the complainant and the respondent, or their authorized representatives, may contact CRC for information about the complaint. The
Director will determine what information, if any, about the complaint will
be released.
§ 37.89 May the Director offer the parties to a complaint the option of mediation?
Yes. The Director may offer the parties to a complaint the option of mediating the complaint. In such circumstances, the following rules apply:
(a) Mediation is voluntary; the parties must consent before the mediation
process will proceed.
(b) The mediation will be conducted
under guidance issued by the Director.
(c) If the parties are unable to reach
resolution of the complaint through
mediation, CRC will investigate and
process the complaint under §§ 37.82
through 37.88 of this part.
DETERMINATIONS
§ 37.90 If a complaint is investigated,
what must the Director do when
the investigation is completed?
At the conclusion of the investigation of the complaint, the Director
must take the following actions:
(a) Determine whether there is reasonable cause to believe that the respondent
has
violated
the
nondiscrimination and equal opportunity
provisions of WIA or this part; and
(b) Notify the complainant, the respondent, and the grantmaking agency,
in writing, of that determination.
§ 37.91 What notice must the Director
issue if he or she finds reasonable
cause to believe that a violation has
taken place?
If the Director finds reasonable cause
to believe that the respondent has violated the nondiscrimination and equal
opportunity provisions of WIA or this
part, he or she must issue an Initial
Determination. The Initial Determination must include:
(a) The specific findings of the investigation;
(b) The corrective or remedial action
that the Department proposes to the
respondent, under § 37.94;
(c) The time by which the respondent
must complete the corrective or remedial action;
(d) Whether it will be necessary for
the respondent to enter into a written
agreement under § 37.95 and 37.96; and
(e) The opportunity to engage in voluntary compliance negotiations.
§ 37.92 What notice must the Director
issue if he or she finds no reasonable cause to believe that a violation has taken place?
If the Director determines that there
is no reasonable cause to believe that a
violation has taken place, he or she
must issue a Final Determination
under § 37.100. The Final Determination
represents the Department’s final
agency action on the complaint.
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§ 37.93
29 CFR Subtitle A (7–1–01 Edition)
§ 37.93 What happens if the Director
finds that a violation has taken
place, and the recipient fails or refuses to take the corrective action
listed in the Initial Determination?
Under such circumstances, the Department must take the actions described in § 37.99 of this part.
§ 37.94 What corrective or remedial actions may be imposed where, after a
compliance review or complaint investigation, the Director finds a violation of the nondiscrimination and
equal opportunity provisions of
WIA or this part?
(a) A Letter of Findings, Notice to
Show Cause, or Initial Determination,
issued under §§ 37.62 or 37.63, 37.66 and
37.67, or 37.91 respectively, must include the specific steps the grant applicant or recipient, as applicable, must
take within a stated period of time in
order to achieve voluntary compliance.
(b) Such steps must include:
(1) Actions to end and/or redress the
violation of the nondiscrimination and
equal opportunity provisions of WIA or
this part;
(2) Make whole relief where discrimination has been identified, including,
as appropriate, back pay (which must
not accrue from a date more than 2
years before the filing of the complaint
or the initiation of a compliance review) or other monetary relief; hire or
reinstatement; retroactive seniority;
promotion; benefits or other services
discriminatorily denied; and
(3) Such other remedial or affirmative relief as the Director deems necessary, including but not limited to
outreach, recruitment and training designed to ensure equal opportunity.
(c) Monetary relief may not be paid
from Federal funds.
§ 37.95 What procedures apply if the
Director finds that a recipient has
violated the nondiscrimination and
equal opportunity provisions of
WIA or this part?
(a) Violations at State level. Where the
Director has determined that a violation of the nondiscrimination and
equal opportunity provisions of WIA or
this part has occurred at the State
level, he or she must notify the Governor through the issuance of a Letter
of Findings, Notice to Show Cause or
Initial Determination, as appropriate,
under § 37.62 or 37.63, 37.66 and 37.67, or
37.91, respectively. The Director may
secure compliance with the nondiscrimination and equal opportunity
provisions of WIA and this part
through, among other means, the execution of a written assurance and/or
Conciliation Agreement, under paragraph (d) of this section.
(b) Violations below State level. Where
the Director has determined that a violation of the nondiscrimination and
equal opportunity provisions of WIA 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 §§ 37.62 or 37.63, 37.66 and 37.67, or
37.91, respectively.
(1) Such issuance must:
(i) Direct the Governor to initiate negotiations immediately with the violating recipient(s) to secure compliance by voluntary means;
(ii) Direct the Governor to complete
such negotiations within 30 days of the
Governor’s receipt of the Notice to
Show Cause or within 45 days of the
Governor’s receipt of the Letter of
Findings or Initial Determination, as
applicable. The Director reserves the
right to enter into negotiations with
the recipient at any time during the
period. For good cause shown, the Director may approve an extension of
time to secure voluntary compliance.
The total time allotted to secure voluntary compliance must not exceed 60
days.
(iii) Include a determination as to
whether compliance must be achieved
by:
(A) Immediate correction of the violation(s) and written assurance that
such violations have been corrected,
under § 37.96;
(B) Entering into a written Conciliation Agreement under § 37.97; or
(C) Both.
(2) If the Governor determines, at
any time during the period described in
paragraph (b)(1)(ii) of this section, that
a recipient’s compliance cannot be
achieved by voluntary means, the Governor must so notify the Director.
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Office of the Secretary of Labor
§ 37.100
(3) If the Governor is able to secure
voluntary compliance under paragraph
(b)(1) of this section, he or she must
submit to the Director for approval, as
applicable:
(i) Written assurance that the required action has been taken, as described in § 37.96;
(ii) A copy of the Conciliation Agreement, as described in § 37.97; or
(iii) Both.
(4) The Director may disapprove any
written assurance or Conciliation
Agreement submitted for approval
under paragraph (b)(3) of this section
that fails to satisfy each of the applicable requirements provided in §§ 37.96 or
37.97.
(c) Violations in National Programs.
Where the Director has determined
that a violation of the nondiscrimination and equal opportunity provisions
of WIA or this part has occurred in a
National Program, he or she must notify the Federal grantmaking agency
and the recipient by issuing a Letter of
Findings, Notice to Show Cause, or Initial Determination, as appropriate,
under §§ 37.62 or 37.63, 37.66 and 37.67, or
37.91, respectively. The Director may
secure compliance with the nondiscrimination and equal opportunity
provisions of WIA and this part
through, among other means, the execution of a written assurance and/or
Conciliation Agreement under §§ 37.96
or 37.97, as applicable.
(f) Provide for enforcement for a
breach of the agreement.
§ 37.98 When will the Director conclude that compliance cannot be secured by voluntary means?
The Director will conclude that compliance cannot be secured by voluntary
means
under
the
following
circumstances:
(a) The grant applicant or recipient
fails or refuses to correct the violation(s) within the time period established by the Letter of Findings, Notice
to Show Cause or Initial Determination; or
(b) The Director has not approved an
extension of time for agreement on voluntary
compliance,
under
§ 37.95(b)(1)(ii), and he or she either:
(1) Has not been notified, under
§ 37.95(b)(3), that the grant applicant or
recipient has agreed to voluntary compliance;
(2) Has disapproved a written assurance or Conciliation Agreement, under
§ 37.95(b)(4); or
(3) Has received notice from the Governor, under § 37.95(b)(2), that the grant
applicant or recipient will not comply
voluntarily.
§ 37.96 What are the required elements
of a written assurance?
A written assurance must provide
documentation that the violations listed in the Letter of Findings, Notice to
Show Cause or Initial Determination,
as applicable, have been corrected.
§ 37.99 If the Director concludes that
compliance cannot be secured by
voluntary means, what actions must
he or she take?
If the Director concludes that compliance cannot be secured by voluntary
means, he or she must either:
(a) Issue a Final Determination;
(b) Refer the matter to the Attorney
General with a recommendation that
an appropriate civil action be instituted; or
(c) Take such other action as may be
provided by law.
§ 37.97 What are the required elements
of a Conciliation Agreement?
A Conciliation Agreement must:
(a) Be in writing;
(b) Address each cited violation;
(c) Specify the corrective or remedial
action to be taken within a stated period of time to come into compliance;
(d) Provide for periodic reporting on
the status of the corrective and remedial action;
(e) Provide that the violation(s) will
not recur; and
§ 37.100 What information must a Final
Determination contain?
A Final Determination must contain
the following information:
(a) A statement of the efforts made
to achieve voluntary compliance, and a
statement that those efforts have been
unsuccessful;
(b) A statement of those matters
upon which the grant applicant or recipient and CRC continue to disagree;
(c) A list of any modifications to the
findings of fact or conclusions that
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§ 37.101
29 CFR Subtitle A (7–1–01 Edition)
were set forth in the Initial Determination, Notice to Show Cause or Letter of
Findings;
(d) A statement of the grant applicant’s or recipient’s liability, and, if
appropriate, the extent of that liability;
(e) A description of the corrective or
remedial actions that the grant applicant or recipient must take to come
into compliance;
(f) A notice that if the grant applicant or recipient fails to come into
compliance within 10 days of the date
on which it receives the Final Determination, one or more of the following
consequences may result:
(1) After the grant applicant or recipient is given the opportunity for a
hearing, its WIA Title I funds may be
terminated, discontinued, or withheld
in whole or in part, or its application
for such funds may be denied, as appropriate;
(2) The Secretary of Labor may refer
the case to the Department of Justice
with a request to file suit against the
grant applicant or recipient; or
(3) the Secretary may take any other
action against the grant applicant or
recipient that is provided by law;
(g) A notice of the grant applicant’s
or recipient’s right to request a hearing under the procedures described in
§§ 37.112 through 37.115; and
(h) A determination of the Governor’s liability, if any, under § 37.52.
§ 37.101 Whom must the Director notify of a finding of noncompliance?
Where a compliance review or complaint investigation results in a finding
of noncompliance, the Director must
notify:
(a) The grant applicant or recipient;
(b) The grantmaking agency; and
(c) Tthe Assistant Attorney General.
BREACHES OF CONCILIATION
AGREEMENTS
§ 37.102 What happens if a grant applicant or recipient breaches a Conciliation Agreement?
When it becomes known to the Director that a Conciliation Agreement has
been breached, the Director may issue
a Notification of Breach of Conciliation Agreement.
§ 37.103 Whom must the Director notify about a breach of a Conciliation
Agreement?
The Director must send a Notification of Breach of Conciliation Agreement
to
the
Governor,
the
grantmaking agency, and/or other
party(ies) to the Conciliation Agreement, as applicable.
§ 37.104 What information must a Notification of Breach of Conciliation
Agreement contain?
A Notification of Breach of Conciliation Agreement must:
(a) Specify any efforts made to
achieve voluntary compliance, and indicate that those efforts have been unsuccessful;
(b) Identify the specific provisions of
the Conciliation Agreement violated;
(c) Determine liability for the violation and the extent of the liability;
(d) Indicate that failure of the violating party to come into compliance
within 10 days of the receipt of the Notification of Breach of Conciliation
Agreement may result, after opportunity for a hearing, in the termination or denial of the grant, or discontinuation of assistance, as appropriate, or in referral to the Department
of Justice with a request from the Department to file suit;
(e) Advise the violating party of the
right to request a hearing, and reference the applicable procedures in
Section 37.111; and
(f) Include a determination as to the
Governor’s liability, if any, in accordance with the provisions of § 37.52.
§ 37.105 Whom must the Director notify if enforcement action under a
Notification of Breach of Conciliation Agreement is commenced?
In such circumstances, the Director
must notify:
(a) The grantmaking agency; and
(b) The Governor, recipient or grant
applicant, as applicable.
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Office of the Secretary of Labor
§ 37.111
Subpart E—Federal Procedures For
Effecting Compliance
§ 37.110 What enforcement procedures
does the Department follow to effect compliance with the nondiscrimination and equal opportunity provisions of WIA and this
part?
(a) Sanctions; judicial enforcement. If
compliance has not been achieved after
issuance of a Final Determination
under §§ 37.99 and 37.100, or a Notification of Breach of Conciliation Agreement under §§ 37.102 through 37.105, the
Secretary may:
(1) After opportunity for a hearing,
suspend, terminate, deny or discontinue the WIA Title I financial assistance, in whole or in part;
(2) Refer the matter to the Attorney
General with a recommendation that
an appropriate civil action be instituted; or
(3) Take such action as may be provided by law.
(b) Deferral of new grants. When proceedings under § 37.111 have been initiated against a particular recipient, the
Department may defer action on that
recipient’s applications for new WIA
Title I financial assistance until a
Final Decision under § 37.112 has been
rendered. Deferral is not appropriate
when WIA Title I financial assistance
is due and payable under a previously
approved application.
(1) New WIA 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 WIA Title I financial assistance does not include assistance approved before the beginning of proceedings under § 37.111, or increases in
funding as a result of changed computations of formula awards.
§ 37.111 What hearing procedures does
the Department follow?
(a) Notice of opportunity for hearing.
As part of a Final Determination, or a
Notification of Breach of a Conciliation Agreement, the Director must include, and serve on the grant applicant
or recipient (by certified mail, return
receipt requested), a notice of opportunity for hearing.
(b) Complaint; request for hearing; answer. (1) In the case of noncompliance
that cannot be voluntarily resolved,
the Final Determination or Notification of Breach of Conciliation Agreement is considered the Department’s
formal complaint.
(2) To request a hearing, the grant
applicant or recipient must file a written answer to the Final Determination
or Notification of Breach of Conciliation Agreement, and a copy of the
Final Determination or Notification of
Breach of Conciliation Agreement,
with the Office of the Administrative
Law Judges, 800 K Street N.W., Suite
400, Washington, DC 20001.
(i) The answer must be filed within 30
days of the date of receipt of the Final
Determination
or
Notification
of
Breach of Conciliation Agreement.
(ii) A request for hearing must be set
forth in a separate paragraph of the answer.
(iii) The answer must specifically
admit or deny each finding of fact in
the Final Determination or Notification of Breach of Conciliation Agreement. Where the grant applicant or recipient does not have knowledge or information sufficient to form a belief,
the answer may so state and the statement will have the effect of a denial.
Findings of fact not denied are considered admitted. The answer must separately state and identify matters alleged as affirmative defenses, and must
also set forth the matters of fact and
law relied on by the grant applicant or
recipient.
(3) The grant applicant or recipient
must simultaneously serve a copy of
its filing on the Office of the Solicitor,
Civil Rights Division, Room N–2464,
U.S. Department of Labor, 200 Constitution Avenue N.W., Washington DC
20210.
(4) (i) The failure of a grant applicant
or recipient to request a hearing under
this paragraph, 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
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§ 37.112
29 CFR Subtitle A (7–1–01 Edition)
considered admitted, and the Final Determination or Notification of Breach
of Conciliation Agreement becomes the
Final Decision of the Secretary as of
the day following the last date by
which the grant applicant or recipient
was required to request a hearing or
was to appear at a hearing. See
§ 37.112(b)(3).
(c) Time and place of hearing. Hearings
will be held at a time and place ordered
by the Administrative Law Judge upon
reasonable notice to all parties and, as
appropriate, the complainant. In selecting a place for the hearing, due regard must be given to the convenience
of the parties, their counsel, and witnesses, if any.
(d) Judicial process; evidence. (1) The
Administrative Law Judge may use judicial process to secure the attendance
of witnesses and the production of documents authorized by Section 9 of the
Federal Trade Commission Act (15
U.S.C. 49).
(2) Evidence. In any hearing or administrative review conducted under this
part, evidentiary matters will be governed by the standards and principles
set forth in the Uniform Rules of Evidence issued by the Department of Labor’s Office of Administrative Law
Judges, 29 CFR part 18.
§ 37.112 What procedures for initial
and final decisions does the Department follow?
(a) Initial Decision. After the hearing,
the Administrative Law Judge must
issue an initial decision and order, containing findings of fact and conclusions
of law. The initial decision and order
must be served on all parties by certified mail, return receipt requested.
(b) Exceptions; Final Decision. (1)
Final decision after a hearing. The initial decision and order becomes the
Final Decision and Order of the Secretary unless exceptions are filed by a
party or, in the absence of exceptions,
the Secretary serves notice that he or
she will review the decision.
(i) A party dissatisfied with the initial decision and order may, within 45
days of receipt, file with the Secretary
and serve on the other parties to the
proceedings and on the Administrative
Law Judge, exceptions to the initial
decision and order or any part thereof.
(ii) Upon receipt of exceptions, the
Administrative Law Judge must index
and forward the record and the initial
decision and order to the Secretary
within three days of such receipt.
(iii) A party filing exceptions must
specifically identify the finding or conclusion to which exception is taken.
Any exception not specifically urged is
waived.
(iv) Within 45 days of the date of filing such exceptions, a reply, which
must be limited to the scope of the exceptions, may be filed and served by
any other party to the proceeding.
(v) Requests for extensions for the
filing of exceptions or replies must be
received by the Secretary no later than
3 days before the exceptions or replies
are due.
(vi) If no exceptions are filed, the
Secretary may, within 30 days of the
expiration of the time for filing exceptions, on his or her own motion serve
notice on the parties that the Secretary will review the decision.
(vii) Final Decision and Order.
(A) Where exceptions have been filed,
the initial decision and order of the Administrative Law Judge becomes the
Final Decision and Order of the Secretary unless the Secretary, within 30
days of the expiration of the time for
filing exceptions and replies, has notified the parties that the case is accepted for review.
(B) Where exceptions have not been
filed, the initial decision and order of
the Administrative Law Judge becomes
the Final Decision and Order of the
Secretary unless the Secretary has
served notice on the parties that he or
she will review the decision, as provided in paragraph (b)(1)(vi) of this section.
(viii) Any case reviewed by the Secretary under this paragraph must be
decided within 180 days of the notification of such review. If the Secretary
fails to issue a Final Decision and
Order within the 180-day period, the
initial decision and order of the Administrative Law Judge becomes the
Final Decision and Order of the Secretary.
(2) Final Decision where a hearing is
waived.
(i) If, after issuance of a Final Determination under § 37.100 or Notification
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Office of the Secretary of Labor
§ 37.115
of Breach of Conciliation Agreement
under § 37.104, voluntary compliance
has not been achieved within the time
set by this part and the opportunity for
a hearing has been waived as provided
for in § 37.111(b)(4), the Final Determination or Notification of Breach of
Conciliation Agreement becomes the
Final Decision of the Secretary.
(ii) When a Final Determination or
Notification of Breach of Conciliation
Agreement becomes the Final Decision
of the Secretary, the Secretary may,
within 45 days, issue an order terminating or denying the grant or continuation of assistance or imposing other
appropriate sanctions for the grant applicant or recipient’s failure to comply
with the required corrective and/or remedial actions, or referring the matter
to the Attorney General for further enforcement action.
(3) Final agency action. A Final Decision and Order issued under § 37.112(b)
constitutes final agency action.
§ 37.113 What procedure does the Department follow to suspend, terminate, withhold, deny or discontinue
WIA Title I financial assistance?
Any action to suspend, terminate,
deny or discontinue WIA 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 WIA Title I financial assistance will become effective until:
(a) The Director has issued a Final
Determination under § 37.100 or Notification of Breach of Conciliation Agreement under § 37.104;
(b) There has been an express finding
on the record, after opportunity for a
hearing, of failure by the grant applicant or recipient to comply with a requirement imposed by or under the
nondiscrimination and equal opportunity provisions of WIA or this part;
(c) A Final Decision has been issued
by the Secretary, the Administrative
Law Judge’s decision and order has become the Final Decision of the Secretary, or the Final Determination or
Notification of Conciliation Agreement
has been deemed the Final Decision of
the Secretary, under § 37.112(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.
§ 37.114 What procedure does the Department follow to distribute WIA
Title I financial assistance to an alternate recipient?
When the Department withholds
funds from a recipient or grant applicant under these regulations, the Secretary may disburse the withheld funds
directly to an alternate recipient. In
such case, the Secretary will require
any alternate recipient to demonstrate:
(a) The ability to comply with these
regulations; and
(b) The ability to achieve the goals of
the nondiscrimination and equal opportunity provisions of WIA.
§ 37.115 What procedures does the Department follow for post-termination proceedings?
(a) A grant applicant or recipient adversely affected by a Final Decision
and Order issued under § 37.112(b) will
be restored, where appropriate, to full
eligibility to receive WIA 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 WIA and this part.
(b) A grant applicant or recipient adversely affected by a Final Decision
and Order issued under § 37.112(b) may
at any time petition the Director to restore its eligibility to receive WIA
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
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Pt. 42
29 CFR Subtitle A (7–1–01 Edition)
section are pending, sanctions imposed
by the Final Decision and Order under
§ 37.112(b) (1) and (2) must remain in effect.
(c) The Director must issue a written
decision on the petition for restoration.
(1) If the Director determines that
the grant applicant or recipient has
not brought itself into compliance, he
or she must issue a decision denying
the petition.
(2) Within 30 days of its receipt of the
Director’s decision, the recipient or
grant applicant may file a petition for
review of the decision by the Secretary, setting forth the grounds for its
objection to the Director’s decision.
(3) The petition must be served on
the Director and on the Office of the
Solicitor, Civil Rights Division.
(4) The Director may file a response
to the petition within 14 days.
(5) The Secretary must issue the final
agency decision denying or granting
the recipient’s or grant applicant’s request for restoration to eligibility.
PART 42—COORDINATED
ENFORCEMENT
Sec.
42.1 General statement.
42.2 Purpose.
42.3 National Committee.
42.4 Structure of the National Committee.
42.5 Policy review.
42.6 Enforcement strategy.
42.7 Complaint/directed action logs.
42.8 Coordination plan.
42.9 Farm Labor Specialist (ESA).
42.10 Farm Labor contact persons and regional coordinators (OSHA).
42.20 Regional Farm Labor Coordinated Enforcement Committee.
42.21 Data collection.
AUTHORITY: 29 U.S.C. 49, et seq.; 29 U.S.C.
201 et seq.; 29 U.S.C. 651, et seq; 29 U.S.C. 801,
et seq.; 5 U.S.C. 301.
SOURCE: 45 FR 39489, June 10, 1980, unless
otherwise noted.
§ 42.1
General statement.
These regulations are promulgated
by the Secretary of Labor to describe
the coordination of the activities of the
Employment Standards Administration, the Occupational Safety and
Health Administration, and the Em-
ployment and Training Administration
relating to migrant farmworkers.
§ 42.2
Purpose.
(a) These regulations coordinate the
activities of ESA, OSHA and ETA, and
are intended to:
(1) Ensure effective enforcement efforts under the protective statutes—
i.e., the Farm Labor Contractor Registration Act (FLCRA), the Occupational Safety and Health Act (OSHA),
and the Fair Labor Standards Act
(FLSA) (protective statutes).
(2) Ensure that the enforcement efforts of DOL agencies are coordinated
to maximize their effectiveness, yet
minimize unnecessary duplication.
(3) Focus the attention of DOL agencies upon the special employment-related problems faced by migrant farmworkers.
(4) Coordinate DOL enforcement efforts with related activities of farmworker groups, federal and State agencies, and other concerned parties outside the Department of Labor whose
operations are related to the employment, housing, and working conditions
of migrant farmworkers.
(5) Establish an information exchange which will afford the Department, farmworker groups, and other
concerned parties outside the Department of Labor the opportunity to exchange information concerning wages,
hours and working conditions.
§ 42.3
National Committee.
A National Farm Labor Coordinated
Enforcement Committee (National Committee) is hereby established which
shall be responsible for: Reviewing
policies, guidelines and enforcement
goals and strategies for the Department of Labor with respect to migrant
farm labor-related enforcement efforts
under the protective statutes; resolving policies which are in conflict between DOL agencies; advising the Secretary on legislative initiatives which
would strengthen farm labor-related
enforcement efforts; and providing
guidance and recommendations to DOL
agencies on related enforcement activities.
422
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| File Type | application/pdf |
| File Title | Document |
| Subject | Extracted Pages |
| Author | U.S. Government Printing Office |
| File Modified | 2011-04-14 |
| File Created | 2001-08-24 |