- What is the difference in the rules that apply to organizations
that receive direct funding (through a direct grant) versus indirect funding
(through a voucher)? Are Individual Training Accounts an example of indirect
funding, like a voucher? Does this mean that an Eligible Training Provider can
conduct or require "inherently religious activities" with participants in the
job training program? What, if any, restrictions apply to an ETP?
Yes, in essence an ITA can be considered like a
voucher, because it is a mechanism by which One-Stop customers direct WIA Title
I financial assistance to the training provider of their choice. So long as
there are enough providers or program options to ensure that customers have a
genuine and independent private choice of provider or program option, then
selected providers operate under the “indirect” rules. If there is
not a genuine choice, then the providers would have to operate under the
“direct” rules.
Customers may only choose providers that are
Eligible Training Providers, of course. Under section 122 of WIA, a training
provider must meet certain statutory criteria in order to be identified as an
eligible provider of training services. Nothing in the statutory criteria
excludes faith-based or religious organizations from being eligible training
providers.
“Direct” funding rules:
If customers have not exercised a genuine and
independent private choice of provider, the “direct” funding rules
apply so funded providers cannot conduct or require “inherently religious
activities” with government funds. Such ETPs may engage in inherently
religious activities, and may offer the opportunity to do so to customers, but
they must abide by the restrictions that apply to “direct” funding:
inherently religious activities must be (1) voluntary for customers, (2)
separated in either time or location from the service supported with government
assistance, and (3) not paid for with any government funds.
“Indirect” funding rules:
Where customers have made a genuine and
independent private choice of provider or training option, then the
“indirect” funding rules apply. Under these rules, funded ETPs do not
have to separate inherently religious activities in time or location, but can
instead offer them as an integrated part of the regular training program.
Further, so long as customers have voluntarily chosen to participate in its
program, an ETP could require customers to participate fully in the program,
including in any inherently religious activities that may be a part of the
program. Religious activities must always be voluntary in government programs,
but the voluntariness requirement would be satisfied in such a case because the
customer has voluntary chosen to participate in the program.
Restrictions on type of training permitted:
Currently, section 37.6(f)(1) prohibits the use
of government funds, whether direct or indirect, to pay for customers to be
employed or trained in “sectarian activities.” Thus, currently, a
customer could not choose to use an ITA to fund training in, e.g., pastoral
counseling, even if the training provider otherwise satisfied the requirements
of the program. The Department has proposed a change to this rule to clarify
that, under the Constitution, it is permissible for organizations, including
ETPs, to provide employment or training in inherently religious activities so
long as the support for such training was received indirectly. Once the
proposed change comes into effect, then customers will be able to use their
ITAs for religious training (such as seminary) as long as customers have a
genuine and independent private choice between religious and other training
options, and the organizations providing the religious training otherwise
satisfy the requirements of the program. This change is expected to come into
effect within the next few months. You will be notified when it does so.
Restriction on ETP hiring practices:
Section 188 of WIA prohibits organizations from
hiring employees based on the employees' religion if the employee will be paid
with funds from WIA Title I financial assistance received by the organization
(whether directly or indirectly).
- If a faith-based organization (FBO) receives financial assistance
from the federal government to provide services as part of the One-Stop Center
system, can the FBO use religion as a criterion for hiring and other employment
decisions?
It depends on the employment position or
positions involved. The Workforce Investment Act (WIA) bars recipients of
financial assistance under the One-Stop Center system from discriminating on
the basis of religion in employment, but only in the administration of, or in
connection with, the programs or activities that received the financial
assistance. So the FBO may not use religion as a criterion for employment in
the programs or activities that receive the financial assistance, but may hire,
promote, or make other employment decisions on the basis of religion for other
programs or activities.
- What types of financial assistance will make an FBO subject to the
nondiscrimination provisions of WIA?
Under the law, "financial assistance" includes
much more than simply dollars and cents. The term also includes in-kind
assistance, such as free or reduced-rate use of federal personnel or One-Stop
property.
- If an FBO uses a meeting room to offer free services at a One Stop
Center, but receives no other financial assistance from the One-Stop system,
may the FBO use religion as a criterion for employment decisions for those
services?
It depends on how often and how extensively the
FBO uses the meeting room. If the use is "casual or transient," then the law
does not regard the use as "financial assistance," and the FBO may make
faith-based employment decisions for the program or activity that provides the
services. If the use of the meeting room is more extensive, then that use is
considered "financial assistance," and the FBO may not make employment
decisions on the basis of religion for the program or activity that provides
the services.
- What if the FBO is listed as a resource by a One-Stop Center? May
that FBO continue to hire and promote on a faith basis?
The answer depends on the type of "listing"
involved. Under WIA, each State is required to assemble a list of training
providers that are approved to provide services to beneficiaries through
Individual Training Accounts (ITAs). In order to be placed and retained on this
list, a training provider is required to submit an application and to satisfy
specific requirements regarding cost and levels of performance. These providers
are known as "Eligible providers of training services" or "Eligible training
providers."
If an FBO goes through this process, and as a
result is placed on the state's list of Eligible training providers," then the
FBO may not use religion as a criterion for employment decisions in the
administration of, or in connection with, the programs and activities that it
provides through the list.
Other types of listing as a "resource" will not
be considered "financial assistance" under WIA, and therefore the FBO will be
able to use religion as an employment criterion. For example, if a One-Stop
Center assembles a list of outside resources that beneficiaries may consult for
assistance that the One-Stop system does not provide, and places a particular
FBO on that list, that listing will not subject the FBO to WIA's
nondiscrimination provisions.
- If a faith-based group, previously allowed to hire on a religious
basis because it did not get government money, becomes a WIA contractor or
receives WIA financial assistance, will the FBO have legal problems because it
made faith-based employment decisions in the past?
No. The law does not apply retroactively.
Therefore, the WIA nondiscrimination provisions will apply only to the hiring
that the FBO does after it becomes a recipient under WIA, and only to jobs that
administer or are connected with the programs and activities that receive the
Federal financial assistance.
- If a faith-based group is providing TANF-funded workforce
development services through the One-Stop Center system, which employment rule
governs the FBO — WIA or Charitable Choice? Does it matter if the TANF
money is combined with the WIA funds for the One Stop, or the TANF funded
service is only delivered at and administered by the One Stop?
Charitable Choice, which exempts FBOs providing
TANF services from the bar on religion-based employment discrimination, will
govern. Therefore the FBO may consider religion in its employment decisions for
the TANF program. The way the TANF funds are handled does not matter in this
specific instance. It may, however, make a difference with regard to how other
laws apply to the program or the organization.
- If a faith-based group provides WIA-funded training as a vendor of
services, and the State procurement law allows faith-based organizations to
hire on a religious basis, does the FBO now come under the WIA
nondiscrimination rule or not? Does it matter if the funds are delivered via
vouchers?
Yes, the FBO would be subject to the WIA
nondiscrimination provisions. A federal statute overrides a state law that
conflicts with it. Furthermore, under those provisions, it does not matter
whether the financial assistance is delivered through vouchers. The FBO would
therefore be barred from using religion as a hiring criterion for the training
programs or activities receiving financial assistance under WIA.
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