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                   Policy Brief, Vol. 2, No. 3
                            March 2000

      Provisions In The Workforce Investment Act Relating To
Nondiscrimination On The Basis Of Disability And The Development
      By The Governor Of A Written Methods Of Administration

          Center on State Systems and Employment (RRTC)
   Center on Workforce Investment and Employment Policy (RRTC)

INTRODUCTION
     On August 7, 1998 President Clinton signed into law
     the Workforce Investment Act of 1998 (Public Law
     105-220). Hereinafter in this policy brief, Public Law
     105-220 will be referred to as "The Act" or "WIA."
     Title I of WIA provides assistance to states
     interested in establishing statewide and local
     workforce investment systems.

     Interim final regulations issued by the Department of
     Labor on November 12, 1999 [Part 37 of Title 29 of the
     Code of Federal Regulations, 29 CFR Part 37] implement
     the nondiscrimination and equal opportunity provisions
     set out in Section 188 of the Act. Section 188
     prohibits discrimination on the grounds of disability
     as well as race, color, religion, sex, national
     origin, age, political affiliation or belief, and for
     beneficiaries only, citizenship or participation in a
     WIA Title I financially assisted program or activity.
     These regulations are modeled on regulations issued
     under the Job Training Partnership Act [29 CFR Part
     34].

     The purpose of this policy brief is to identify and
     describe the key provisions in the interim final
     regulations articulating the nondiscrimination and
     equal opportunity responsibilities of the Governor,
     recipients of WIA funds, and programs and activities
     that are part of the One-stop delivery system and that
     are operated by One-Stop partners. The focus of the
     policy brief will be on those provisions specifically
     addressing nondiscrimination and equal opportunity for
     persons with disabilities.

     Of particular importance is the requirement in the
     interim final regulations that the Governor develop
     and maintain a written document called a "Methods of
     Administration" describing how the state plans on
     meeting its nondiscrimination and equal opportunity
     responsibilities. This document must be completed
     within 180 days of either the date on which the
     interim final rule is effective (May 12, 2000) or the
     date on which the Secretary of Labor gives final
     approval of the state plan, whichever is later.

GENERAL PROVISIONS

What is the Purpose of the Regulation? [29 CFR 37.1]
     The purpose of the interim final regulation is to
     implement the nondiscrimination and equal opportunity
     provisions set out in section 188 of WIA. The
     regulations also provide uniform procedures for
     implementing these provisions.

To whom does this regulation apply? [29 CFR 37.2]
     The regulation applies to any recipient of assistance
     under Title I of WIA, including state-level agencies
     that administer, or are financed in whole or in part
     with WIA Title I funds, state and local workforce
     investment boards, local WIA grant recipients,
     One-Stop operators, service providers, and on-the-job
     training employers. The regulation also applies to
     programs and activities that are part of the One-Stop
     delivery system and that are operated by One-Stop
     partners to the extent that the programs and
     activities are being conducted as part of the One-Stop
     delivery system.

What forms of discrimination do the Act and the implementing
regulations prohibit? [29 CFR 37.5]
     No individual in the United States may, on the grounds
     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.

What specific discriminatory actions based on disability are
prohibited by the regulation? [29 CFR 37.7]
     The specific discriminatory actions based on
     disability follow generally the regulations
     implementing Title II of the Americans with
     Disabilities Act. [64 Federal Register 61692, November
     12, 1999] Discriminatory actions that are prohibited
     by the regulation include [29 CFR 37.7(a)]:
       * Denying a qualified individual with a disability
         the opportunity to participate in or benefit from
         the aid, benefits, services, or training;
       * Affording such an opportunity that is not equal to
         that afforded others;
       * Providing such an opportunity 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;
       * Providing different, segregated, or separate
         opportunity to individuals with disabilities or
         any class of individuals with disabilities, unless
         such action is necessary to provide qualified
         individuals with disabilities with an opportunity
         that is as effective as that provided to others;
         and
       * Otherwise limiting a qualified individual with a
         disability in enjoyment of any right, privilege,
         advantage, or opportunity enjoyed by others.

     In addition, a recipient:
       * May 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. [29
         CFR 37. 7(c)]
       * Must administer WIA Title I financially assisted
         programs and activities in the most integrated
         setting appropriate to the needs of qualified
         individuals with disabilities. [29 CFR 37.7(d)]
       * May not, directly or through contract or other
         arrangement, use standards, procedures, criteria,
         or administrative methods that have the purpose or
         effect of subjecting qualified individuals with
         disabilities to discrimination or defeating or
         substantially impairing accomplishment of the
         objectives of the WIA Title I financially assisted
         program or activity. [29 CFR 37.7(e)]
       * In the selection of contractors, must not use
         criteria that subject qualified persons with
         disabilities to discrimination. [29 CFR 37.7(g)]
       * 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. [29 CFR 37.7(i)]

     Furthermore, with regard to aid, benefits, services,
     training, and employment, a recipient must provide
     reasonable accommodation to qualified individuals with
     disabilities who are applicants, registrants,
     participants, employees (or applicants for
     employment), unless providing the accommodation would
     cause undue hardship. [29 CFR 37.8(a)]

     The term "reasonable accommodation" means
     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; modifications or adjustments that
     enable a qualified individual with a disability to
     receive aid, benefits, services, or training equal to
     that provided to nondisabled individuals or to perform
     the essential functions of a job; or modifications or
     adjustments that enable a qualified individual with a
     disability to enjoy the same benefits and privileges
     as are enjoyed by other similarly situated individuals
     without disabilities.[29 CFR 37.4]

     A recipient must also make reasonable modifications in
     policies, practices, or procedures when the
     modifications are necessary to avoid discrimination
     unless making modifications would fundamentally alter
     the nature of the service, program, or activity. [29
     CFR 37.8(b)]

     In addition, recipients must take appropriate steps to
     ensure communications with beneficiaries, registrants,
     applicants, participants and members of the public who
     are individuals with disabilities are as effective as
     communications with others. This means, among other
     things, furnishing appropriate auxiliary aids and
     services where necessary unless it would result in a
     fundamental alteration in the nature of a service,
     program, or activity. [29 CFR 37.9]

To what extent are employment practices covered by the
regulation? [29 CFR 37.10]
     Discrimination is prohibited in employment practices
     in the administration of, or in connection with the
     following:
            * Any WIA Title I financially assisted
              program or activity; and
            * any program or activity that is part of
              the One-Stop delivery system and is
              operated by a One-Stop partner to the
              extent that the program or activity is
              being conducted as part of the One-Stop
              delivery system.

     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. This rule does not preempt consistent
     state and local requirements.

What office in the Department of Labor is responsible for
administering this regulation? [29 CFR 37. 12]
     The Civil Rights Center, in the Office of the
     Assistant Secretary for Administration and Management,
     is responsible for administering and enforcing the
     nondiscrimination and equal opportunity provisions in
     WIA and the implementing regulations and for
     developing and issuing policies, standards, guidance,
     and procedures for effecting compliance.

RECORDKEEPING AND OTHER AFFIRMATIVE OBLIGATIONS OF RECIPIENTS

What is the grant applicantR17;s obligation to provide a written
assurance of compliance with the nondiscrimination provisions of
Section 188 of WIA? [29 CFR 37.20]
     As a condition to the award of financial assistance
     under Title I of WIA, the grant applicant must assure
     that it will comply fully with the nondiscrimination
     and equal opportunity provisions of WIA and other
     civil rights statutes such as the Americans with
     Disabilities Act and Section 504 of the Rehabilitation
     Act of 1973.

     The WIA state plan must provide a statement that WIA
     Title I assisted programs and activities will be
     conducted in compliance with these laws and
     implementing regulations. The state must also certify
     that it has developed and maintains a Methods of
     Administration (which is described below).

What are the rules governing the designation and
responsibilities of equal opportunity officers? [29 CFR
37.23-.28]
     Every recipient (except small recipients) must
     designate an equal opportunity officer. A small
     recipient means a recipient who has fewer than 15
     beneficiaries per year and employs fewer than 15
     employees. The individual should be a senior level
     employee of the recipient i.e., the individual should
     have the requisite education, training, and experience
     and have authority to direct the equal opportunity
     effort. The responsibilities of the equal opportunity
     officer include:
            * Serving as a liaison with the Department
              of LaborR17;s Civil Rights Center;
            * Monitoring and investigating the
              recipientR17;s activities;
            * Reviewing the recipientR17;s written
              policies;
            * Developing and publishing the
              recipientR17;s procedures for processing
              complaints;
            * Reporting directly to appropriate
              officials (including the state WIA
              director and the GovernorR17;s WIA
              liaison) about equal opportunities
              matters;
            * Undergoing ongoing training;
            * If applicable, overseeing the
              development and implementation of the
              recipientR17;s Methods of
              Administration.

What are a recipientR17;s obligations to disseminate its equal
opportunity policy? [29 CFR 37.29-.36]
     A recipient must provide initial and continuing notice
     that it does not discriminate on any prohibited ground
     to, among others, registrants, applicants,
     participants, and employees. During each presentation
     to orient new participants and new employees, and the
     general public, a recipient must include a discussion
     of the rights, including the right to file a
     complaint, under the nondiscrimination and equal
     opportunity provisions of WIA.

What are the recipientR17;s responsibilities to collect and
maintain data and other information? [29 CFR 37.37-.41]
     Each recipient must record the disability status
     (where known) of every applicant, registrant,
     terminee, applicant for employment, and employee. This
     information must be stored in a manner ensuring
     confidentiality. Recipients must also maintain logs of
     complaints alleging discrimination. The most important
     purposes of the equal opportunity data and information
     collection and maintenance system are to assist the
     CRC and those assigned by the state in monitoring
     performance by recipients, identifying instances or
     areas of discrimination and identifying individuals or
     groups of individuals who have been discriminated
     against. A vital element of a system is the ability of
     the reviewer to correlate aggregate data to individual
     records.

What are a recipientR17;s responsibilities under the regulation
regarding the provision of universal access to WIA Title I
financially assisted core services? [29 CFR 37.42]
     RecipientR17;s responsibilities include:
       * Advertising the recipientR17;s program in the
         media;
       * Sending notices to schools and community service
         groups that serve various populations; and
       * Consulting with appropriate community service
         groups about ways in which the recipient may
         improve its outreach and service to various
         populations to broaden the pool of those
         considered for participation in One-Stops and
         other WIA-assisted programs and activities.

GOVERNORR17;S RESPONSIBILITIES TO IMPLEMENT THE NONDISCRIMINATON
AND EQUAL OPPORTUNITY REQUIREMENTS OF WIA

What are the GovernorR17;s Oversight Responsibilities? [29 CFR
37.51]
     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.

To what extent may a Governor be liable for the actions of a
recipient he or she has financially assisted under WIA Title I?
[29 CFR 37.52]
     The Governor is jointly and severally liable for all
     violations of the nondiscrimination and equal
     opportunity provisions by recipients unless the
     Governor has:
            * Established and adhered to a Methods of
              Administration (see below);
            * Entered into a contract with the
              recipient that clearly establishes the
              recipientR17;s responsibilities;
            * Acted with due diligence to monitor the
              recipientR17;s compliance;
            * Taken prompt and appropriate corrective
              action to effect compliance.

What are a GovernorR17;s oversight responsibilities regarding
recipientsR17; recordkeeping? [29 CFR 37.53]
     The Governor must ensure that recipients collect and
     maintain prescribed records in an appropriate manner.

What are a GovernorR17;s responsibilities to develop and
maintain a Methods of Administration? [29 CFR 37.54]
     Each Governor must establish and adhere to a Methods
     of Administration (MOA) for state programs under WIA
     Title I. The MOA must be designed to give reasonable
     guarantee that all recipients will comply and are
     complying with the nondiscrimination and equal
     opportunity provisions of WIA and the implementing
     regulations. The MOA must be in writing (with
     narrative and documentation), reviewed and updated
     periodically (at least every two years), and signed by
     the Governor.

     At a minimum, each Methods of Administration must:
       * Describe how the state programs and recipients
         have satisfied the requirements concerning&endash;
              * assurances,
              * equal opportunity officers,
              * notice and communication,
              * data and information collection and
                maintenance,
              * universal access,
              * GovernorR17;s oversight
                responsibilities regarding recipient
                recordkeeping, and
              * complaint processing procedures;

       * Include a system for determining whether a grant
         applicant or service provider is likely to conduct
         its programs and activities in a nondiscriminatory
         way;
       * Include a system for periodically monitoring the
         compliance of recipients which must include--a
         statistical or other quantifiable analysis of
         records and data, an investigation of any
         significant differences identified, and an
         assessment to determine whether the recipient has
         fulfilled its administrative obligations (e.g.,
         assurances, equal opportunity officers, notice and
         communication, data and information collection and
         maintenance, universal access, and complaint
         processing procedures) and any duties assigned to
         it under the MOA (e.g., monitoring, sanctions and
         corrective actions, and policy development,
         communication and training);
       * Include a review of recipient policy issuances to
         ensure they are nondiscriminatory;
       * Include a system for reviewing recipientR17;s job
         training contracts and other similar agreements to
         ensure that they are nondiscriminatory and contain
         required language;
       * Include procedures for ensuring that recipients
         comply with section 504 of the Rehabilitation Act
         (e.g., provide reasonable accommodation,
         reasonable modifications to policies and
         procedures, program and architectural
         accessibility, administer the program in the most
         integrated setting appropriate, and ensure
         effective communication);
       * Include a system of policy communication and
         training to ensure that personnel are aware of and
         can effectively carry out these responsibilities;
       * Include procedures for obtaining prompt corrective
         action (including in the case of a finding of
         discrimination, procedures for retroactive relief
         e.g., back pay, and prospective relief e.g.,
         training, policy development and communication to
         ensure that the discrimination does not recur),
         or, as necessary, applying sanctions when
         noncompliance is found; and
       * Include supporting documentation to show that the
         commitments made in the Methods of Administration
         have been and or are being carried out,
         including-- policy and procedural issuances,
         copies of monitoring instruments and instructions,
         evidence that nondiscrimination and equal
         opportunity policies have been developed and
         communicated, information reflecting the extent of
         training, reports of monitoring reviews and
         reports of follow-up actions taken (e.g., use of
         sanctions), and copies of any notices made.

When must the Governor carry out his or her obligations with
regard to the Methods of Administration? [29 CFR 37.55]
     The Methods of Administration must be completed within
     180 days of either the date on which the interim final
     rule is effective (May 12, 2000) or the date on which
     the Secretary of Labor gives final approval of the
     state plan, whichever is later.

COMPLIANCE PROCEDURES (INCLUDING COMPLAINT RESOLUTION
PROCEDURES)

How does the Director of the Civil Rights Center, Department of
Labor, evaluate compliance with the nondiscrimination and equal
opportunity provisions in WIA and the implementing regulations?
[29 CFR 37. 60-.68]
     The Director may conduct pre-approval compliance
     reviews of grant applicants and post-approval
     compliance reviews of recipients. The Director may
     also investigate and resolve complaints. Further, the
     Director may periodically review the adequacy of the
     Methods of Administration as well as the adequacy of
     the GovernorR17;s performance under the MOA.

Who may file a complaint and with whom? [29 CFR 37.70-.89]
     Any person who believes that either he or she, or any
     specific class of individuals, has been or is being
     subjected to discrimination may file a written
     complaint, either by him/herself or through a
     representative. The complaint may be filed with either
     the recipient or the Director of the Civil Rights
     Center.

What are the required elements of a recipientR17;s complaint
resolution procedures? [29 CFR 37.76]

At a minimum, procedures must:
       * Provide for a notice of final action within 90
         days from the date the complaint is filed;
       * Contain specified elements (e.g., notice that
         complaint has been received, written statement of
         issues and whether recipient will accept or reject
         the issue for investigation, period for
         fact-finding or investigation, period for
         voluntary resolution, and a written notice of
         final resolution which must include a notice of
         right to file an appeal with the CRC); and
       * Provide for alternative dispute resolution.

Are there any circumstances in which the Director will send a
complaint to another authority? [29 CFR 85]
     Yes. Where a case involves an allegation of employment
     discrimination under the ADA, the Director may refer
     the complaint to the Equal Employment Opportunity
     Commission.

     Where the complaint alleges discrimination by an
     entity that operates a program or activity financially
     assisted by a grantmaking agency other than the
     Department of Labor, but that participates as a
     partner in a One-Stop delivery system, the Civil
     Rights Center in DOL and the Office for Civil Rights
     in the grantmaking agency (e.g., the Department of
     Education where the partner is the state vocational
     rehabilitation agency) will have dual jurisdiction
     over the complaint. Under these circumstances, the
     Director of the Civil Rights Center will refer the
     complaint to the grantmaking agency for processing.

     According to the preamble to the interim final
     regulations, local workforce investment boards, when
     developing and entering into memoranda of
     understanding with One-Stop partners should include
     attention to equal opportunity issues that may affect
     the One-Stop partners or the delivery system. Such
     issues include how discrimination complaints will be
     handled and how the cost of reasonable accommodations
     will be shared. [64 FR 61697, November 12, 1999]

If the Director concludes that compliance cannot be secured by
voluntary means what actions must he or she take? [29 CFR 37.99]
     If the Director concludes that compliance cannot be
     secured by voluntary means, he or she must either
     issue a final determination (which could result in
     withholding in whole or in part of WIA Title I funds),
     refer the matter to the Attorney General with a
     recommendation that an appropriate civil action be
     instituted, or take such other action as may be
     provided by law.

     Policy Brief, Vol. 2, No. 3

     This policy brief was written by Robert Silverstein of
     The Center for the Study and Advancement of Disability
     Policy (CSADP) at The George Washington University,
     School of Public Health and Health Services. The CSADP
     is a partner of the Rehabilitation Research and
     Training Center on State Systems and Employment at the
     Institute for Community Inclusion/UAP (#H133B30067),
     and the Rehabilitation Research and Training Center on
     Workforce Investment and Employment Policy at
     Community Options, Inc. (#H133B980042). The Centers
     are funded, in part, by the National Institute on
     Disability and Rehabilitation Research (NIDRR) of the
     US Department of Education. The opinions contained in
     this publication are those of the grantees and do not
     necessarily reflect those of the US Department of
     Education.

     For more information on this study, please contact
     Robert Silverstein at (202) 496-8452 .

     For a publications brochure or general information,
     contact the Institute for Community Inclusion,
     ChildrenR17;s Hospital, 300 Longwood Avenue, Boston,
     MA 02115. (617)355-6506 voice; (617)355-6956 TTY;
     <ici@a1.tch.harvard.edu>

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