[Federal Register: July 12, 2004 (Volume 69, Number 132)]
[Rules and Regulations]
[Page 41881-41894]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jy04-7]
[[Page 41881]]
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Part II
Department of Labor
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Employment and Training Administration
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20 CFR Parts 667 and 670
29 CFR Parts 2 and 37
Workforce Investment Act--Equal Treatment in Department of Labor
Programs for Faith-Based Community Organizations; Protection of
Religious Liberty, and Limitation on Employment of Participants; Final
Rules
[[Page 41882]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 667 and 670
Office of the Secretary
29 CFR Parts 2 and 37
RIN 1290-AA21
Equal Treatment in Department of Labor Programs for Faith-Based
and Community Organizations; Protection of Religious Liberty of
Department of Labor Social Service Providers and Beneficiaries
AGENCY: Employment and Training Administration and the Office of the
Secretary, Labor.
ACTION: Final rule.
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SUMMARY: Consistent with constitutional guidelines, this final rule
clarifies that faith-based and community organizations may participate
in the United States Department of Labor (DOL or the Department) social
service programs without regard to the organizations' religious
character or affiliation, and are able to apply for and compete on an
equal footing with other eligible organizations to receive DOL support.
In addition, in order to consolidate the Department's regulations on
religious activities, this final rule revises the Employment and
Training Administration's (ETA) regulation on religious services at Job
Corps centers and the Department's Workforce Investment Act of 1998
(WIA) regulations relating to the use of WIA Title I financial
assistance to support employment and training in religious activities,
and employment at specified locations defined with reference to certain
religious activities. The U.S. Department of Labor supports the
participation of faith-based and community organizations in its social
service programs.
DATES: Effective Date: August 11, 2004.
FOR FURTHER INFORMATION CONTACT: On the Office of the Secretary's
general regulations, 29 CFR part 2, contact: Rhett Butler, Associate
Director for Policy Development, DOL Center for Faith-Based and
Community Initiatives (CFBCI), (202) 693-6450. On 20 CFR part 667,
contact Maria K. Flynn, Acting Administrator, Office of Policy
Development, Evaluation and Research, Employment and Training
Administration, (202) 693-3700. On 20 CFR 670.555, contact: Grace
Kilbane, Administrator of the National Office of Job Corps, (202) 693-
3000. On 29 CFR 37.6, contact Annabelle T. Lockhart, Director, Civil
Rights Center (CRC), (202) 693-6500. Please note these are not toll-
free numbers. Individuals with hearing or speech impairments may access
these telephone numbers via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background--The March 9, 2004 Proposed Rule
On March 9, 2004, the Department published a proposed rule (69 FR
11234) to amend the Department's general regulations to make clear that
faith-based and community organizations may participate in the
Department's social service programs, including as recipients of
Federal financial assistance. The proposed rule also set forth
conditions for seeking, receiving, and using DOL support related to DOL
programs. The proposed rule was part of the Department's effort to
fulfill its responsibilities under two Executive Orders issued by
President George W. Bush. The first of these Orders, Executive Order
13198 (66 FR 8497), published in the Federal Register on January 31,
2001, created Centers for Faith-Based and Community Initiatives in five
cabinet departments--Education, Health and Human Services, Housing and
Urban Development, Justice, and Labor--and directed these Centers to
identify and eliminate regulatory, contracting, and other programmatic
obstacles to the equal participation of faith-based and community
organizations in the provision of social services by these Departments.
The second of these Executive Orders, Executive Order 13279, published
in the Federal Register on December 16, 2002 (67 FR 77141), charged
executive branch agencies to give equal treatment to faith-based and
community groups that apply for Federal financial assistance to meet
social needs in America's communities. In the Order, President Bush
called for an end to discrimination against faith-based organizations
and ordered implementation of these policies throughout the executive
branch in a manner consistent with the First Amendment to the United
States Constitution. He further directed that faith-based organizations
be allowed to retain their religious autonomy over their internal
governance and composition of boards, and over their display of
religious art, icons, scriptures, or other religious symbols, when
participating in Federally-financed programs. The Administration
believes that there should be an equal opportunity for all
organizations--both faith-based and otherwise--to participate as
partners in Federal programs.
Consistent with the President's initiative, the Department's
proposed rule of March 9, 2004, proposed to amend the Department's
general regulations as well as the specific regulations governing Job
Corps and implementing the Workforce Investment Act. The objective of
the proposed rule was to ensure that DOL-supported social service
programs were open to all qualified organizations, regardless of their
religious character, and to establish clearly the proper uses of DOL
support and the conditions for receipt of such support. In addition,
this proposed rule was designed to ensure that the implementation of
the Department's social service programs would be conducted in a manner
consistent with the requirements of the Constitution, including the
Religion Clauses of the First Amendment. The proposed rule had the
following specific objectives:
1. Participation by faith-based organizations in the Department of
Labor's programs. The proposed rule clarified that organizations are
eligible to participate in DOL social service programs without regard
to their religious character or affiliation, and that organizations
must not be excluded from competing for DOL support simply because they
are faith-based. Specifically, the proposed rule included regulatory
provisions specifying that faith-based organizations would be eligible
to compete for DOL support on the same basis, and under the same
eligibility requirements, as all other organizations. The proposed rule
also included provisions designed to ensure that DOL, DOL social
service providers, and State and local governments administering DOL
support would be prohibited from discriminating for or against
organizations on the basis of religion, religious belief, or religious
character in the administration or distribution of DOL support,
including grants, contracts, and cooperative agreements.
2. Inherently religious activities. The proposed rule included
requirements related to inherently religious activities in DOL-
supported social service programs. Specifically, under the proposed
regulatory provisions, an organization could not use direct DOL support
\1\ for inherently religious
[[Page 41883]]
activities, such as worship, religious instruction, or proselytization.
If the organization engaged in such activities, the proposed provisions
required the organization to offer those activities separately in time
or location from the social service programs receiving direct DOL
support, and participation by program beneficiaries in any such
inherently religious activities would have to be voluntary. The
proposed requirements ensured that direct DOL support would not be used
to support inherently religious activities. Such support could not be
used, for example, to conduct prayer meetings, worship services, or any
other activity that is inherently religious.
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\1\ As in the proposed rule, the term ``direct DOL support'' is
used here to refer to DOL support provided directly to a religious
or other non-governmental organization within the meaning of the
Establishment Clause of the First Amendment. For example, direct DOL
support may occur where the Federal Government, a State or local
government administering DOL support, or a DOL intermediary social
service provider selects an organization and obtains the needed
services straight from the organization (e.g., via a grant or
cooperative agreement).
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The proposed rule clarified that this restriction would not mean
that DOL social service providers could not engage in inherently
religious activities, but only that such providers could not use direct
DOL support for these activities. Under the proposed rule, such
providers would have to take steps to separate in time or location
their inherently religious activities from the services they offer with
direct DOL support. The proposed rule further provided that these
restrictions on inherently religious activities would not apply where
DOL support was indirectly provided. The proposed rule clarified that
indirect DOL support referred to DOL support that is indirect within
the meaning of the Establishment Clause of the First Amendment to the
Constitution. An organization receives indirect support if, for
example, a program beneficiary redeems a voucher, coupon, certificate,
or similar mechanism that was provided to that individual using DOL
financial assistance under a program that was designed to give that
individual a genuine and independent private choice among providers or
program options.
In addition, the proposed rule clarified that the legal
restrictions applied to inherently religious activities in DOL social
service programs within correctional facilities would sometimes be
different from the legal restrictions that are applied to other DOL-
supported social service programs, because the degree of government
control over correctional environments sometimes warrants affirmative
steps by prison officials, in the form of chaplaincies and similar
programs, to ensure that prisoners have opportunities to exercise their
religion.
The proposed rule also recognized that the legal restrictions
applied to inherently religious activities in other DOL-supported
social service programs under extensive government control, for example
isolated residential Job Corps facilities, would sometimes be different
from the legal restrictions applied to other DOL-supported social
service programs. These restrictions would differ because the extensive
government control over the environment of these DOL social service
programs sometimes would require that affirmative steps be taken by
program officials to ensure that the beneficiaries of these programs
have the opportunity to exercise their religion. The proposed rule
emphasized that any participation in such inherently religious
activities would have to be voluntary and that nothing in the proposed
rule was intended to restrict the exercise of rights or duties
guaranteed by the Constitution. For example, the proposed rule
specified that program officials, although permitted to impose
reasonable time, place, and manner restrictions, would not be allowed
to restrict program beneficiaries' ability to freely express their
views and to exercise their right to religious freedom. In addition,
the proposed rule specified that residential facilities receiving DOL
support would be required to permit residents to engage in voluntary
religious activities, including holding religious services, at such
facilities (although reasonable time, place, and manner restrictions
would be permitted).
3. Independence of faith-based organizations. The proposed rule
also clarified that a faith-based organization that is a DOL social
service provider or that participates in DOL social service programs
would retain its independence and could continue to carry out its
mission, including the definition, development, practice, and
expressions of its religious beliefs, although no organization, faith-
based or otherwise, could use direct DOL support for any inherently
religious activities, such as worship, religious instruction, or
proselytization. Among other things, the proposed rule included
provisions that explicitly stated that a faith-based organization could
use space in its facilities to provide DOL-supported social services
without removing religious art, icons, scriptures, or other religious
symbols. In addition, under the proposed rule, a DOL-supported faith-
based organization could retain its name (even if the name made a
religious reference), select its board members and otherwise govern
itself on a religious basis, and include religious references in its
mission statements and other governing documents.
4. Nondiscrimination in providing assistance. The proposed rule
provided that DOL, DOL social service intermediary providers, DOL
social service providers in their use of direct DOL support, and State
and local governments could not, in providing social services
(including outreach for such services), discriminate for or against a
current or prospective program beneficiary on the basis of religion,
religious belief, or absence thereof. The proposed rule clarified that
organizations receiving DOL support indirectly (for example, as a
result of the genuine and independent private choice of a beneficiary
of a program offering choice among providers or program options) would
not be prohibited from offering assistance that integrates faith and
social services and requires participation in all aspects of the
organizations' programs and activities, including the religious
aspects.
5. Assurance requirements. The proposed rule also prohibited, and
directed the removal of, provisions in the Department's grant
documents, agreements, covenants, memoranda of understanding, policies,
or regulations that require only faith-based organizations applying for
or receiving DOL support to provide assurances that they would not use
such support for inherently religious activities. Under the proposed
rule, all DOL social service providers, as well as State and local
governments administering DOL support, would be required to carry out
all DOL-supported activities in accordance with all program
requirements and other applicable requirements governing the conduct of
DOL-supported activities, including those requirements prohibiting the
use of direct DOL support for inherently religious activities. In
addition, to the extent that provisions in grant documents, agreements,
covenants, memoranda of understanding, policies, or regulations used by
DOL, or by a DOL social service intermediary provider or a State or
local government administering DOL support, disqualify organizations
from participating in DOL's programs because such organizations are
motivated or influenced by religious faith to provide social services,
or because of the organizations' religious character or affiliation,
the proposed rule removed such restrictions, which are inconsistent
with governing law.
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II. Discussion of Comments Received on the Proposed Rule
The Department received comments on the proposed rule from 7
commenters--two individuals, four civil or religious liberties
organizations, and one State agency receiving financial assistance
under the Workforce Investment Act (WIA). Some comments were generally
supportive of the proposed rule; others were critical. The following is
a summary of the comments, and the Department's responses.
Participation by Faith-Based Organizations in Department of Labor
Social Service Programs
Several commenters expressed appreciation and support for the
Department's efforts to clarify the rules governing participation of
religious organizations in its programs. Two commenters commended DOL,
in particular, for explicitly stating that DOL, DOL social service
providers, and State and local governments administering DOL-supported
social service programs may not discriminate either for or against
religious providers.
Other commenters disagreed with the proposed rule, arguing that it
would allow Federal financial assistance to be given to ``pervasively
sectarian'' organizations in violation of what the commenters described
as a constitutional principle that government may not fund programs
that are so permeated by religion that their secular side cannot be
separated from the sectarian. These commenters maintained that the rule
places no limitations on the kinds of religious organizations that can
receive financial assistance, and they requested that ``pervasively
sectarian'' organizations be barred from receiving such assistance from
the Department.
We do not agree that the Constitution requires the Department to
assess the overall religiousness of an organization and deny financial
assistance to organizations that are ``pervasively sectarian.'' Rather,
faith-based (and other) organizations that receive direct DOL support
must not use such support for inherently religious activities, and they
must ensure that such religious activities are separate in time or
location from services directly supported by the Department and that
participation in such activities by program beneficiaries is voluntary.
Furthermore, under the proposed rule, such religious organizations are
prohibited from discriminating for or against program beneficiaries on
the basis of religion or religious belief, and participating
organizations that violate these requirements are subject to applicable
sanctions and penalties. The regulations would thus ensure that direct
DOL support is not used for inherently religious activities, as
required by current case law.
Moreover, the Supreme Court's ``pervasively sectarian'' doctrine--
which held that there are certain religious institutions in which
religion is so pervasive that no government aid may be provided to
them, because their performance of even ``secular'' tasks will be
infused with religious purpose--no longer enjoys the support of a
majority of the Court. Four Justices expressly abandoned it in Mitchell
v. Helms, 530 U.S. 793, 825-29 (2000) (plurality opinion), and Justice
O'Connor's opinion in that case, joined by Justice Breyer, set forth
reasoning that is inconsistent with its underlying premises, see id. at
857-58 (O'Connor, J., concurring in judgment) (requiring proof of
``actual diversion of public support to religious uses''). Thus, six
members of the Court have rejected the view that aid provided to
religious institutions will invariably advance the institutions'
religious purposes. That view is the foundation of the ``pervasively
sectarian'' doctrine. The Department therefore believes that under
current precedent, the Department may provide DOL support to all social
service providers, without regard to religion and without criteria that
would require providers to abandon their religious expression or
character. As a result, the Department declines to make the requested
change.
Another commenter expressed concern that section 2.32(a) of the
proposed rule failed to circumscribe how and when religion could be
accommodated. Section 2.32(a) states in pertinent part: ``DOL, DOL
social service providers, as well as State and local governments
administering DOL support, must not discriminate for or against an
organization on the basis of the organization's religious character or
affiliation, although this requirement does not preclude DOL, DOL
social service providers, or State and local governments administering
DOL support from accommodating religion in a manner consistent with the
Establishment Clause.'' The commenter suggested that the Department
revise the rule to set limits on permissible accommodation, for
instance, by stating that accommodation must be handled in an even-
handed manner and not favor some faiths over others; by stating that
accommodation is permissible only if it removes a substantial burden on
religious exercise; and by ``prohibiting accommodations to religion
that would vitiate the essence of the program, or which would work a
hardship on participants.''
The Department does not agree that the requested change is
necessary. The purpose of the rule is to clarify that all
organizations, both faith-based and otherwise, are eligible to
participate in DOL social service programs without regard to their
religious character or affiliation and to establish clearly the proper
uses to which DOL support could be put and the conditions for receipt
of such support. The rule is designed to ensure that the implementation
of the Department's social service programs will be conducted in a
manner consistent with the requirements of the Constitution, including
the Religion Clauses of the First Amendment. All accommodations
provided to religious individuals or organizations must be done within
the confines of law. Such law includes statutory program requirements
as well as the conditions set forth in this rule. The statement in the
rule concerning accommodation simply clarifies that otherwise valid
religious accommodations do not violate the religious nondiscrimination
requirement of the rule.
One commenter requested that the Department revise Sec. 2.32(c) to
clarify that an organization may not be discriminated against because
it lacks a faith-based component. This section as proposed stated in
pertinent part: ``A grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by DOL, a State or
local government, or a DOL social service intermediary provider in
administering a DOL social service program must not disqualify
religious organizations from receiving DOL support or participating in
DOL programs on the grounds that such organizations are motivated or
influenced by religious faith to provide social services, or on the
grounds that such organizations have a religious character or
affiliation.''
We believe the commenter's concerns are already addressed by Sec.
2.32(a), which provides, inter alia, that ``DOL, DOL social service
intermediary providers, as well as State and local governments
administering DOL support, must not discriminate for or against an
organization on the basis of the organization's religious character or
affiliation'' (emphasis added). However, we have modified the language
of the final rule to further address this concern and to make even more
clear that it is impermissible to disqualify an organization from
receiving DOL
[[Page 41885]]
support based on the organization's religious faith, character, or
affiliation, or because such organization lacks a religious component.
Section 2.32(c) of the final rule reads: ``A grant document, agreement,
covenant, memorandum of understanding, policy, or regulation that is
used by DOL, a State or local government, or a DOL social service
intermediary provider in administering a DOL social service program
must not disqualify organizations from receiving DOL support or from
participating in DOL programs on the grounds that such organizations
are motivated or influenced by religious faith to provide social
services, have a religious character or affiliation, or lack a
religious component.''
Inherently Religious Activities
Some commenters suggested that the proposed rule does not
sufficiently detail the scope of religious content that must be omitted
from programs receiving DOL support. For example, two commenters
suggested that the explanation given of ``inherently religious
activities'' as ``worship, religious instruction, or proselytization''
is unclear or incomplete. Relatedly, one commenter suggested that the
proposed rule would authorize conduct that would impermissibly convey
the message that government endorses religious content. Another
commenter suggested that the Department modify the proposed rule to
make clear that the government may not disburse public funds to
organizations that convey religious messages or in any way advance
religion. Another commenter suggested that the rule define
``participation'' to provide guidance as to whether ``compelled but
passive presence at religious activities * * * constitute[s] coerced
participation.'' Finally, one commenter requested clarification whether
it would be permissible for a DOL social services provider to engage in
inherently religious activity at a beneficiary's request before or
following the provision of social services that receive direct
financial assistance.
The Department disagrees with these comments and declines to make
the requested changes. Concerning the rule's definition of ``inherently
religious activities,'' it would be difficult, if not impossible, to
establish a complete list of all inherently religious activities.
Inevitably, a regulatory definition would exclude some inherently
religious activities while including activities that arguably may not
be inherently religious. Rather than attempt to establish an exhaustive
regulatory definition, the Department has decided to retain the
language of the proposed rule, which provides examples of prohibited
activities. This approach is consistent with Supreme Court precedent,
which likewise has not comprehensively defined inherently religious
activities. In response to the suggestion that the rule will indicate
or create the appearance that the Department endorses religious
content, it again merits emphasis that the rule forbids the use of
direct government assistance for inherently religious activities and
states that any such activities must be voluntary for participants and
separated in time or location from activities directly supported by the
Department. As to the suggestion that the government must exclude from
its programs those organizations that convey religious messages or
advance religion with their own funds, the Department finds no
constitutional support for this view. As noted above, the Supreme Court
has held that the Constitution forbids the use of direct Federal
financial assistance for inherently religious activities, but the Court
has rejected the presumption that religious organizations will
inevitably divert such assistance for their own religious activities.
The Department likewise rejects the view that faith-based organizations
cannot be trusted to fulfill their written promises to adhere to grant
or contract requirements.
Moreover, for reasons similar to those articulated above regarding
``inherently religious activities,'' the Department does not believe
that it would be appropriate to provide a more detailed definition of
``participation.'' Nonetheless, we reaffirm that a beneficiary's
participation in any religious activities offered by a recipient of DOL
support must be entirely voluntary and further, that such activities
must be offered separately in time or location from social service
programs receiving direct DOL support. We recommend that DOL social
service providers, including State and local governments administering
DOL-supported programs, help to ensure that beneficiaries and
prospective beneficiaries of their programs understand their rights by
having literature available for the beneficiaries explaining their
rights.
Finally, in response to commenter's request for further
clarification of the ``separate, in time or location'' requirement, the
Department declines to revise this portion of the rule, because the
Department does not believe that it is ambiguous or necessitates
additional regulation for proper adherence. Regarding the example posed
by the commenter, the Department believes it would be permissible under
the rule for staff of a DOL-supported social services provider to
engage in inherently religious activity with a beneficiary at a
beneficiary's request before or after the provision of social service
activities directly supported by DOL. Such activity would be permitted
because it would be voluntary (because it was at the beneficiary's
request) and separate in time from any social service activity
receiving direct DOL support (because it took place before or after,
but not during, the social service activities directly supported by
DOL). Under the rule, an organization receiving direct DOL support is
responsible for maintaining a distinction between the social service
activities directly supported by DOL and any privately-supported
inherently religious activities. Of course, no direct DOL support can
be used for inherently religious activities.
Voucher-Style Programs Under the Rule
Two commenters claimed that the proposed rule would authorize the
use of voucher programs to provide assistance to faith-based
organizations without instituting adequate ``constitutional
safeguards,'' and requested that the rule be revised to comply with the
framework instituted by Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
These commenters emphasized the need for program beneficiaries to have
a ``real choice'' of their social service provider and suggested there
was ``no * * * social service structure in place to ensure a real
choice.'' One commenter requested clarification whether inherently
religious activities conducted by a service provider receiving both
direct and indirect support must be separate in time and location from
DOL program services. This commenter also requested reconciliation
between, as the commenter described it, the rule's requirement that
service providers receiving vouchers must satisfy ``all legal and
programmatic requirements'' (see 2.32(c) and 2.33(c), both referring to
``all applicable legal and programmatic requirements'') and the rule's
implication that the Department may ``dispense with programmatic
requirements where doing so relieves a substantial burden on religious
practice.'' Last, one commenter requested a rule change that would make
the nondiscrimination provision of Sec. 2.33(a) applicable to service
providers receiving indirect support.
The Department respectfully declines to adopt the recommendations
of the commenters requesting incorporation of
[[Page 41886]]
additional requirements by regulation. The proposed rule clearly states
that any organization receiving indirect DOL support, whether through a
voucher-style program or other qualifying program offered by the
Department, must comply with Federal law. Such law includes
constitutional requirements. The Department thus believes that the
proposed rule adequately addresses these commenters' constitutional
concerns.
Regarding the inquiry whether inherently religious activities
conducted by a social service provider receiving both direct and
indirect support must be separate in time and location from DOL program
services, Sec. 2.33(b)(1) of the rule plainly prohibits service
providers from using direct DOL support to conduct inherently religious
activities. Using any direct support to conduct such activities would
violate this prohibition, even if the organization also received
indirect support. Religious activity need not be restricted, however,
when related to services (or part of programs) that receive only
indirect DOL support.
The Department also disagrees with the suggestion that the rule is
inconsistent in requiring faith-based organizations to meet applicable
legal and programmatic requirements but also permitting constitutional
accommodations for certain religious practices. One fundamental purpose
of this rule is to allow organizations to be eligible for Department
programs without regard to their religious character or affiliation and
to prevent the exclusion of organizations from competing for DOL
support simply because of their religious character. Thus, faith-based
organizations are eligible to compete for DOL support on the same
basis, and under the same eligibility requirements, as all other
organizations. The statement in the proposed rule that indicated
accommodations to religion may be permitted, ``in a manner consistent
with the Establishment Clause,'' does not signify that discrimination
against or preferential treatment for religion is permissible, but
rather acknowledges the special circumstances involved when DOL
provides support to religious organizations. Necessarily included
within these special circumstances are any accommodations for religious
practices that are consistent with the Free Exercise and Establishment
Clauses of the Constitution.
The Department also disagrees with the commenter's request to
extend the proposed rule's nondiscrimination provision (Sec. 2.33(a))
to religious organizations receiving indirect DOL support. As an
initial matter, this final rule does not alter any nondiscrimination
provisions of existing statutes, including statutes governing programs
providing DOL support. See section of preamble entitled Applicability
and Notice of Nondiscrimination Requirements. Thus, to the extent that
such statutes restrict the activities of indirectly funded
organizations, those restrictions remain in effect under this rule.
Questions regarding the applicability of these other statutes may be
addressed to the appropriate DOL program official or the DOL's Civil
Rights Center. See Sec. 2.35 of this final rule. Additionally, the
religious freedom of beneficiaries in a program receiving indirect
support is protected by the guarantee of genuine and independent
private choice. Officials administering public support under a program
providing indirect assistance have an obligation to ensure that every
eligible applicant receives services from some provider, and no
beneficiary may be required to receive services from a provider to
which the beneficiary has a religious objection. In other words, DOL-
supported vouchers and other mechanisms for providing indirect support
must be available to all participants regardless of their religious
belief, and those who object to a religious provider have a right to
services from some alternative provider.
Exceptions for Chaplains and Certain DOL-Supported Social Service
Programs From the Restriction on Direct Funding of ``Inherently
Religious'' Activities
Some commenters objected to the exception from the ``inherently
religious activities'' restrictions for religious or other
organizations assisting chaplains in carrying out their duties in
prisons, detention facilities, or community correction centers. Others
criticized the rule for excepting certain DOL-supported social service
programs--i.e., those that involve a high degree of government control
over the program environment--from the restriction on direct financial
assistance of inherently religious activities, asserting that there is
no legal basis for such an exception. One commenter suggested modifying
the proposed rule to clarify that religious accommodation at remote Job
Corps centers must be available to all participants and not limited to
participants of dominant religions. Still another commenter criticized
the rule for lacking clarity, and expressed concern that too much
discretion was being given to the government in determining which
programs have a high degree of government control.
The Department respectfully disagrees with these comments. As noted
in the proposed rule, the legal restrictions that apply to religious
programs within correctional facilities will sometimes be different
from legal restrictions that govern other Department programs. That is
because correctional institutions are heavily regulated, and this
extensive government control over the prison environment means that
prison officials must sometimes take affirmative steps, in the form of
chaplaincies and similar programs, to provide an opportunity for
prisoners to exercise their religion. Without such efforts, religious
freedom would not exist for Federal prisoners. See Cruz v. Beto, 450
U.S. 319, 322 n.2 (1972) (explaining that ``reasonable opportunities
must be afforded to all prisoners to exercise the religious freedom
guaranteed by the First and Fourteenth Amendments without fear of
penalty''); Abington School District v. Schempp, 374 U.S. 203, 299
(1963) (Brennan, J., concurring) (observing that ``hostility, not
neutrality, would characterize the refusal to provide chaplains and
places of worship for prisoners . . . cut off by the State from all
civilian opportunities for public communion''). Of course, religious
activities must be voluntary for the inmates.
Sometimes the activities of chaplains and those assisting them will
be inherently religious. For example, a chaplain might conduct a
voluntary worship service or administer sacraments. The rule does not
effect any change in the professional or legal responsibilities of
chaplains or those persons or organizations assisting them. Nor does it
diminish the fact that chaplains' duties often include the provision of
secular counseling. Rather, the rule is intended simply to make clear
that the rule's otherwise-applicable restrictions on the use of direct
DOL support for inherently religious activities do not apply to
chaplains in correctional facilities or those functioning in similar
roles. Accordingly, the rule as stated reflects the law and requires no
change.
For similar reasons, the legal restrictions that apply to religious
activities within some DOL-supported social service programs, such as
isolated residential Job Corps facilities, may sometimes be different
from the legal restrictions that govern other DOL programs. This is
because where there is extensive government control over the
environment of a DOL-supported social service program, like an isolated
residential Job Corps facility, program officials must sometimes take
affirmative steps, in the form of access to ministers and similar
programs, to ensure that program beneficiaries may
[[Page 41887]]
exercise their religious freedom. Cf. Katcoff v. Marsh, 755 F.2d 223,
234 (2d Cir. 1985) (finding it ``readily apparent'' that government is
obligated by the First Amendment to make religion available to members
of the Army who otherwise would not have access to their religion
because they are often in isolated areas without access to religious
opportunities). Without such efforts, religious freedom would not exist
for these DOL program beneficiaries. Of course, participation in such
activities must be voluntary. In response to the suggestion that the
rule be modified to clarify that any religious accommodation at Job
Corps centers must not be limited to participants from dominant faiths,
the Department rejects the suggestion as unnecessary. Of course,
religious activities on Job Corps Centers must be permitted for all
beneficiaries of such DOL programs regardless of faith. The rule
already provides that there can be no ``discriminat[ion] for or against
a current or prospective program beneficiary on the basis of religious
or religious belief.'' The Department believes that the proposed rule
requires no change in this regard.
Applicability and Notice of Nondiscrimination Requirements
Three commenters suggested that the rule should explain the scope
of applicable independent statutory provisions requiring grantees not
to discriminate on the basis of religion, rather than simply referring
grantees to appropriate Department program offices. One commenter
further suggested that the proposed rule be amended to provide specific
directions on which programs statutorily bar religious discrimination.
The Department understands that organizations participating in DOL
programs need to be aware of such provisions, but declines to adopt the
suggested recommendation because the Department believes such
information is most easily obtained and best explained by the
appropriate Department offices. The purpose of this rulemaking is to
eliminate undue administrative barriers that the Department has imposed
to the participation of religious organizations in Department programs;
it is not to alter existing statutory requirements, which apply to
Department programs to the same extent that they applied under the
prior rule.
State and Local Diversity Requirements and Preemption
Two commenters expressed concern that the proposed rule will exempt
religious organizations from State and local diversity and
nondiscrimination requirements. Both commenters suggested that the
proposed rule be modified to provide that State and local laws will not
be preempted by the rule. Conversely, one commenter indicated that the
rule should clearly state that it preempts all such State and local
requirements.
The requirements that govern financial assistance under the
Department programs at issue in these regulations do not address
preemption of State or local diversity or nondiscrimination laws.
Federal financial assistance, however, carries Federal obligations. The
Federal obligations continue to be applicable even when Federal
financial assistance is first given to the States or localities through
block grants and the latter are then responsible for disbursing the
Federal financial assistance. No organization is required to apply for
assistance under these programs, but organizations that apply and are
selected for assistance must comply with the applicable legal and
programmatic requirements. As discussed below, these Federal
requirements apply not only to Federal financial assistance but also to
State matching funds and to State funds that are commingled with the
Federal assistance.
Applicability of Rule to State, Local, and ``Commingled'' Funds
One commenter stated that the proposed rule was unclear on whether
it applied to funds supplied by the States. Two commenters stated that
the Department lacked the statutory or constitutional authority to
require States to waive, for their own funds, State law that is
inconsistent with the rule. A third commenter requested a rule change
that would make State matching funds that are not commingled subject to
the rule's requirements.
The Department disagrees with these objections, but has modified
the regulatory text slightly for clarification. The rule makes clear
that when States and local governments voluntarily choose to contribute
their own funds to supplement program activities, they have the option
of commingling their funds with Federal funds or to separate out their
funds from Federal funds. The rule applies to State funds in the former
instance, but not the latter. To the extent a Department program may
explicitly require that Federal rules apply to State matching funds (or
other grantee contributions) or may require State matching funds to be
part of the program grant budget, these State matching funds are
considered to be commingled and thus subject to the requirements of
this rule. The Department also disagrees that it lacks statutory or
constitutional authority to require States to comply with this rule for
commingled State funds when State law is inconsistent with the rule.
Neither States nor localities are obligated to participate in
Department programs, but should they choose to do so, they must comply
with Federal requirements. Valid Federal requirements may be imposed
through, among other means, statute or agency rulemaking, as was done
here. And, of course, where no statute requires commingling of funds,
States remain free to separate their funds from Federal funds, and
Federal requirements do not apply to segregated State funds.
Organizations' Display of Religious Art or Symbols
Three commenters objected to the provisions allowing faith-based
organizations conducting DOL-supported social service programs in their
facilities to retain religious art, icons, scriptures, or other
religious symbols in their facilities.
The Department disagrees with these comments. A number of Federal
statutes affirm the principle embodied in this rule. See, e.g., 42
U.S.C. 290kk-1(d)(2)(B). Moreover, for no other service providers do
Department regulations prescribe the types of artwork or symbols that
may be placed within the structures or room in which DOL-supported
social services are provided. In addition, a prohibition on the use of
religious icons would make it more difficult for many religious
organizations to participate in Department programs than other
organizations by forcing them to procure additional space. It would
thus be an inappropriate and excessive restriction, typical of the
types of regulatory barriers that this final rule seeks to eliminate.
Consistent with constitutional church-state guidelines, a religious
organization that participates in Department programs retains its
independence and may continue to carry out its mission, although it
must not use direct DOL support to support any inherently religious
activities. Accordingly, this final rule continues to provide that
religious organizations may use space in their facilities to provide
DOL-supported services, without removing religious art, icons,
scriptures, or other religious symbols.
Religious Freedom Restoration Act
One commenter requested that the Department include language in the
regulation stating that the Religious
[[Page 41888]]
Freedom Restoration Act (``RFRA''), 42 U.S.C. 2000bb et seq., may
provide relief from otherwise applicable statutory provisions
prohibiting employment discrimination on the basis of religion. The
commenter noted that, for example, the Department of Health and Human
Services has recognized RFRA's ability to provide relief from certain
employment nondiscrimination requirements in the final regulations it
promulgated governing its substance abuse and mental health programs
(e.g., 42 CFR 54.6).
The Department notes that RFRA, which applies to all Federal law
and its implementation, 42 U.S.C. 4000bb-3, 4000bb-2(1), is applicable
regardless of whether it is specifically mentioned in this rule.
Whether a party is entitled to an exemption or other relief under RFRA
simply depends upon whether the party satisfies the RFRA's statutory
requirements. The Department therefore declines to adopt this
recommendation at this time.
Recognition of Religious Organizations' Title VII Exemption
The Department received three comments expressing views on the
rule's provision that, absent statutory authority to the contrary,
religious organizations do not forfeit their Title VII exemption by
receiving financial assistance from the Department. One commenter
approved of the retention of the Title VII exemption, but urged
renaming the section with a more expansive title, such as ``Preserving
the Freedom of Faith-Based Organizations in Employment Decisions.'' Two
commenters stated that the rule ``improperly extends [the] Title VII''
exemption because ``Congress has never authorized [the] exemption'' for
DOL programs. These commenters further assert that providing Federal
financial assistance for the provision of social services to an
organization that considers religion in its employment decisions is
unconstitutional.
The Department disagrees with the objections to the rule's
recognition that a religious organization does not forfeit its Title
VII exemption when administering DOL-supported social services. As an
initial matter, applicable statutory nondiscrimination requirements are
not altered by this rule. Congress establishes the conditions under
which religious organizations are exempt from Title VII. This rule
simply recognizes that the Title VII exemption, including its
limitations, is fully applicable to Federally-assisted organizations
unless Congress says otherwise.
As to the suggestion that the Constitution restricts the government
from providing support for social services to religious organizations
that consider faith in hiring, that view does not accurately represent
the law. As noted below, the employment decisions of organizations that
receive extensive public financial assistance are not attributable to
the State, see Rendell-Baker v. Kohn, 457 U.S. 830 (1982), and it has
been settled for more than 100 years that the Establishment Clause does
not bar the provision of direct Federal grants to organizations that
are controlled and operated exclusively by members of a single faith.
See Bradfield v. Roberts, 175 U.S. 291 (1899); see also Bowen v.
Kendrick, 487 U.S. 589, 609 (1988). Finally, the Department notes that
allowing religious organizations to consider faith in hiring when they
receive government support is much like allowing a Federally-supported
environmental organization to hire those who share its views on
protecting the environment--both types of organization are allowed to
consider ideology and missions, which improves the organizations'
effectiveness and preserves their integrity. Thus, the Department
declines to amend the final rule to require religious organizations to
forfeit their Title VII rights.
The Department also rejects the request to give this section a more
expansive title. The section relates most directly to the retention of
the Title VII exemption, and the proposed title accurately reflects the
section's scope and purpose.
Nondiscrimination in Providing Assistance
Commenters have requested a number of rule changes that would
provide express protections for beneficiaries who object to the
religious character of an assigned service provider. One commenter
requested a revision to make clear that the right to religious freedom
includes the right to be free from religion. Other commenters have
requested provisions that would require notice to beneficiaries that
they may object to a religious service provider and obtain a secular
alternative; that participation in religious activity is voluntary, and
pressure or coercion, even subtly applied, is prohibited; and that the
failure to participate in religious activities will not impact the
receipt of social services. These commenters additionally requested the
creation of a grievance process and remedies for violations of these
rights.
The Department declines to adopt these recommendations, because it
believes that the rule's existing language prohibiting organizations
from discriminating for or against program beneficiaries on the basis
of religion or religious belief encompasses beneficiaries who hold no
religious belief or who desire to be free of religion. Such a
prohibition is straightforward and requires no further elaboration. In
addition, the rule provides that organizations may not use direct DOL
support for inherently religious activities and that any such
activities must be offered separately in time or location and must be
voluntary for program beneficiaries. These requirements further protect
the rights of program beneficiaries. The Department also declines to
adopt the recommendation that the rule create a grievance process that
is specific to the requirements contained in this rule, because
traditional channels of airing grievances or filing complaints are
already generally available.
Assurance Requirements
One commenter, in order to mitigate constitutional concerns raised
by the proposed rule, opposed the removal of any existing requirements
that faith-based organizations provide assurances that direct DOL
support will not be used for inherently religious activities. This
commenter, and one other, stated that the proposed rule should include
additional assurances and safeguards to ``prevent religious use of
[Department] funds.'' Still another commenter requested that the rule
require State and local governments to provide assurances that they
will follow the equal treatment principles of this rule.
The Department disagrees with the commenters and declines to adopt
their recommendations. Once this rule comes into effect, each
prospective DOL social service provider, including State and local
governments, must certify in its application for assistance that it
will comply with various laws applicable to recipients of Federal
financial assistance, including this final rule and its prohibitions on
the use of direct DOL support for inherently religious activities and
on discrimination either for or against religious organizations.
Additional assurances, such as those that are being removed and
prohibited by this rule, only perpetuate an unfair presumption that
program requirements applicable to all DOL providers are insufficient
to bind faith-based organizations and that additional requirements and
assurances must be imposed on these organizations.
The Department believes that no additional requirements above and
beyond those imposed on all participating organizations are needed.
[[Page 41889]]
In issuing this rule, the Department's general approach is that faith-
based organizations are not a category of applicants or service
providers that require additional requirements or oversight in order to
ensure compliance with program regulations. Rather, the Department
presumes that faith-based organizations, like other recipients of DOL
support, fully understand the restrictions on the support they receive,
including the restriction that inherently religious activities cannot
be undertaken with direct DOL support and must remain separate from the
Federally-supported activities. The requirements for use of DOL support
under a Department program apply to, and are binding on, all Department
social service providers.
One commenter requested that the proposed rule require monthly
reports and periodic site visits of all Department grantees to ensure
compliance with the Establishment Clause.
The Department respectfully declines to adopt this recommendation.
Ordinary enforcement and monitoring procedures are sufficient to ensure
that faith-based organizations, like other participating organizations,
do not violate program restrictions, including those concerning
unauthorized uses of financial assistance. The need for enforcement of
Department regulations does not increase simply because some service
providers are faith-based organizations. The Department has a
responsibility to ensure that all DOL support is used in accordance
with program-specific regulations and any government-wide requirements.
Compliance with the Establishment Clause is just one aspect of
compliance with legal and programmatic requirements. We believe the
monitoring mechanisms currently in place are sufficient to address
whatever compliance issues may arise.
Another commenter suggested that the Department amend the proposed
rule regarding assurances to clarify that Sec. 2.32(c) is not limited
to grant documents and applies equally to contracts. The commenter
noted that State and local governments frequently administer federally-
financed social service programs by issuing contracts with service
providers rather than grants.
The Department believes that no change is required. Section 2.32(c)
applies to ``a grant document, agreement, covenant, memorandum of
understanding, policy, or regulation.'' The language is broadly
sweeping and the use of the term ``agreement'' includes by definition
``contracts.'' However, in an effort to further clarify the regulation,
the Department has made the requested change.
Employment or Training Activities That Involve the Maintenance of a
Building Used for Religious Activities
One commenter objected that the proposed rule purportedly
``incorporates by reference an earlier proposed rule'' proposing
revisions to 29 CFR 37.6(f)(2). The commenter stated that the proposed
revision to 37.6(f)(2) would lead to confusion and possible
unconstitutional use of Federal funds for capital improvements to
religious buildings. The Department notes that, contrary to the
commenter's assertions, the rule proposed on March 9 did not include
proposed changes to 29 CFR 37.6(f)(2). As a result, the Department has
responded in detail to this and similar objections in its notice of
final rulemaking for 29 CFR part 37, published elsewhere in the Federal
Register today.
Definitions
The Department received several comments relating to definitions
for terms used in the proposed rule. Two comments focused on the
definition of ``social service program,'' which the Department defined
as including, inter alia, childcare services and literacy and mentoring
programs. One commenter expressed concern that the proposed rule
subsequently failed to address how a religious childcare service
provider would be able to ensure that children as young as three or
four, or perhaps even younger, would have a choice as to whether to
participate in inherently religious activities of the childcare center.
Likewise, the commenter was concerned that such children would be
unable to separate out the religious childcare center's views from the
instruction provided.
The Department disagrees that changes to the rule are necessary in
response to this comment. As with the definition of ``inherently
religious activities'' discussed earlier in this preamble, it would be
difficult, if not impossible, to craft regulatory language that would
address the specific circumstances of every activity covered by the
rule. In the Department's view, the language of the rule is
sufficiently broad to cover the circumstances suggested by the
commenter. That language requires recipients to operate their DOL-
supported programs in a manner consistent with applicable Federal law.
Such law, of course, includes the Constitution.
The same commenter questioned whether a ban on using direct DOL
support for inherently religious activities would apply to volunteer
mentors who were not paid with government money. The commenter wondered
whether such mentors could engage in religious activities with the
children they mentored in an activity receiving direct DOL support.
DOL social service providers may not use direct DOL support for
inherently religious activities. As is discussed below, DOL support
includes more than money. Thus, in a program receiving any form of
direct DOL support, a DOL social service provider--including one
staffed by volunteer mentors--must comply with this rule's restrictions
on inherently religious activities. Of course, where volunteer mentors
are acting outside the scope of a DOL-supported program, they are not
subject to such restrictions on their religious activities.
One commenter suggested that the Department provide a definition
for ``religious organization'' or ``faith-based organization,''
reasoning that a common definition across Federal programs would
maximize opportunities for these organizations. The Department declines
to adopt this suggestion. One of the objectives of this rule is to move
away from unnecessary Federal inquiry into the religious nature, or
absence of religious nature, of an organization seeking DOL support or
participation in a DOL social service program. The Department believes
the focus should always be on (1) whether the organization is eligible
as defined by the program in question; and (2) whether the organization
commits to abide, and does abide, by all legal and programmatic
requirements that govern that support.
Finally, a commenter suggested that ``Federal financial
assistance'' should be defined to include non-financial assistance that
might be provided by DOL or by State or local governments using DOL
funds. The Department declines to amend the definition. Historically,
Federal regulations have used similar, if not identical, language to
define Federal financial assistance. Through the course of time, it has
been clearly established that such assistance includes more than money.
See U.S. Dep't of Transp. v. Paralyzed Veterans, 477 U.S. 597, 607 n.11
(1986) (noting that Federal financial assistance may take non-monetary
form). Federal financial assistance may include, for example, the use
or rent of Federal land or property at below market value, Federal
training, a loan of Federal personnel, subsidies, or other arrangements
with the intention of providing assistance. See Delmonte v. Department
of Bus. & Prof'l Regulation,
[[Page 41890]]
877 F. Supp. 1563 (S.D. Fla. 1995) (training of city police officers by
Federal personnel considered to be Federal financial assistance).
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 requires
that a covered agency prepare a budgetary impact statement before
promulgating a rule that includes any Federal mandate that may result
in the expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year.
One commenter suggested that the rule met the unfunded mandate
requirement only because the rule failed to mandate that alternative
secular providers must be made available for beneficiaries who object
to the religious character of an organization. Contrary to the
commenter's suggestion, the Department has determined that this rule
would not impose a mandate that will result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of more than $100 million in any one year. This is
largely because these regulations impact only Federal financial
assistance. Although State or local governments may commingle their
funds with Federal funds, the rule does not require them to do so.
Amendments to Job Corps and WIA Regulations
Except to the extent discussed above, the Department did not
receive comments concerning the portions of the proposed rule that
proposed to amend the Job Corps and WIA regulations. The Department has
revised the language of these portions of the proposed rule to improve
their clarity and consistency with the part of the proposed rule that
is now the new subpart D of DOL's final general regulation at 29 CFR
part 2. The Department has also revised the language of the proposed
WIA regulations in order to ensure greater conformity with the language
of WIA section 188(a)(3).
II. Findings and Certifications
Executive Order 12866
The Office of Management and Budget (OMB) determined that this rule
is a ``significant regulatory action'' as defined in section 3(f) of
the Order (although not an economically significant regulatory action
under the Order). OMB reviewed this final rule under Executive Order
12866, Regulatory Planning and Review. Any changes made to the rule as
a result of that review are identified in the docket file, which is
available for public inspection in the office of the Center for Faith-
Based and Community Initiatives, U.S. Department of Labor, 200
Constitution Avenue, NW., Room S-2235, Washington, DC 20210.
Regulatory Flexibility Act
The Secretary of Labor, in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), has reviewed and approved this final
rule and in so doing certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
The final rule will not impose any new costs, or modify existing costs,
applicable to recipients of DOL support. Rather, the purpose of the
rule is to clarify that DOL's social service programs are open to all
qualified organizations, regardless of their religious character, and
to establish clearly the permissible uses to which DOL support may be
put. Notwithstanding the Secretary's determination that this rule will
not have a significant economic effect on a substantial number of small
entities, the Department specifically invited comments regarding any
less burdensome alternatives to this rule that will meet the
Department's objectives as described in this preamble. No such comments
were received.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments, and on the private sector. This final rule does not impose
any Federal mandates on any State, local, or tribal governments, or the
private sector, within the meaning of the Unfunded Mandates Reform Act
of 1995.
Paperwork Reduction Act
The Paperwork Reduction Act does not apply because this rule does
not contain any information collection requirements that require the
approval of the Office of Management and Budget.
Executive Order 13132, Federalism
Executive Order 13132, Federalism, prohibits an agency from
publishing any rule that has federalism implications if the rule either
imposes substantial direct compliance costs on State and local
governments and is not required by statute, or the rule preempts State
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. Consistent with Executive Order
13132, the Department specifically solicited comments from State and
local government officials on this proposed rule, and no comments from
these entities were submitted that raised federalism concerns.
List of Subjects
20 CFR Part 667
Employment; Grant programs--labor; Reporting and recordkeeping
requirements.
20 CFR Part 670
Employment; Grant programs--labor; Job Corps; Religious
discrimination.
29 CFR Part 2
Administrative practice and procedure; Claims; Courts; Government
employees; Religious discrimination.
29 CFR Part 37
Administrative practice and procedure; Aged; Aliens; Civil rights;
Discrimination; Equal educational opportunity; Equal employment
opportunity; Grant programs-labor; Individuals with disabilities;
Investigations; Manpower training programs; Political affiliation
discrimination; Religious discrimination; Reporting and recordkeeping
requirements; Sex discrimination.
Signed at Washington, DC, this 7th day of July, 2004.
Elaine L. Chao,
Secretary of Labor.
Emily S. DeRocco,
Assistant Secretary for Employment and Training.
0
For the reasons set forth in the preamble, the Department of Labor
amends 20 CFR Part 667; 20 CFR Part 670; 29 CFR Part 2; and 29 CFR Part
37 as set forth below.
Title 20--Employees' Benefits
Chapter V--Employment and Training Administration, Department of Labor
PART 667--ADMINISTRATIVE PROVISIONS UNDER TITLE I OF THE WORKFORCE
INVESTMENT ACT
0
1. The authority citation for part 667 is revised to read as follows:
Authority: Subtitle C of Title I, Sec. 506(c), Pub. L. 105-220,
112 Stat. 936 (20 U.S.C. 9276(c)); Executive Order 13198, 66 FR
8497, 3 CFR 2001 Comp., p. 750; Executive Order 13279, 67 FR 77141,
3 CFR 2002 Comp., p. 258.
[[Page 41891]]
0
2. In Sec. 667.266, paragraph (b) and the section heading are revised
to read as follows:
Sec. 667.266 What are the limitations related to religious
activities?
* * * * *
(b)(1) 29 CFR part 2, subpart D governs the circumstances under
which DOL support, including WIA Title I financial assistance, may be
used to employ or train participants in religious activities. Under
that subpart, such assistance may be used for such employment or
training only when the assistance is provided indirectly within the
meaning of the Establishment Clause of the U.S. Constitution, and not
when the assistance is provided directly. As explained in that subpart,
assistance provided through an Individual Training Account is generally
considered indirect, and other mechanisms may also be considered
indirect. See also 20 CFR 667.275 and 29 CFR 37.6(f)(1). 29 CFR part 2,
subpart D also contains requirements related to equal treatment in
Department of Labor programs for religious organizations, and to
protecting the religious liberty of Department of Labor social service
providers and beneficiaries.
(2) Limitations on the employment of participants under WIA Title I
to carry out the construction, operation, or maintenance of any part of
any facility used or to be used for religious instruction or as a place
for religious worship are described at 29 CFR 37.6(f)(2).
0
3. In Sec. 667.275, paragraph (b) and the section heading are revised
to read as follows:
Sec. 667.275 What are a recipient's obligations to ensure
nondiscrimination and equal opportunity, and what are a recipient's
obligations with respect to religious activities?
* * * * *
(b) 29 CFR part 2, subpart D governs the circumstances under which
recipients may use DOL support, including WIA Title I financial
assistance, to employ or train participants in religious activities.
Under that subpart, such assistance may be used for such employment or
training only when the assistance is provided indirectly within the
meaning of the Establishment Clause of the U.S. Constitution, and not
when the assistance is provided directly. As explained in that subpart,
assistance provided through an Individual Training Account is generally
considered indirect, and other mechanisms may also be considered
indirect. See also 20 CFR 667.266 and 29 CFR 37.6(f)(1). 29 CFR part 2,
subpart D also contains requirements related to equal treatment of
religious organizations in Department of Labor programs, and to
protection of religious liberty of Department of Labor social service
providers and beneficiaries. Limitations on the employment of
participants under WIA Title I to carry out the construction,
operation, or maintenance of any part of any facility used or to be
used for religious instruction or as a place of religious worship are
described at 29 CFR 37.6(f)(2). See section 188(a)(3) of the Workforce
Investment Act of 1998, 29 U.S.C. 2938(a)(3).
PART 670--THE JOB CORPS UNDER TITLE I OF THE WORKFORCE INVESTMENT
ACT
0
4. The authority citation for part 670 is revised to read as follows:
Authority: Subtitle C of title I, sec. 506(c), Pub. L. 105-220,
112 Stat. 936 (20 U.S.C. 2881 et seq. and 9276(c)); 5 U.S.C. 301;
Executive Order 13198, 66 FR 8497, 3 CFR 2001 Comp., p. 750);
Executive Order 13279, 67 FR 77141, 3 CFR 2002 Comp., p. 258.
0
5. Section 670.555 is amended by removing paragraph (b), redesignating
paragraph (d) as paragraph (b), and revising paragraph (c) to read as
follows:
Sec. 670.555 What are the center's responsibilities in ensuring that
students' religious rights are respected?
* * * * *
(c) Requirements related to equal treatment of religious
organizations in Department of Labor programs, and to protection of
religious liberty of Department of Labor social service providers and
beneficiaries, are found at subpart D of 29 CFR part 2. See also
Sec. Sec. 667.266 and 667.275 of 20 CFR; 29 CFR part 37.
Title 29--Labor
Chapter I--Office of the Secretary of Labor
PART 2--GENERAL REGULATIONS
0
7. The authority citation for part 2 is revised to read as follows:
Authority: 5 U.S.C. 301; Executive Order 13198, 66 FR 8497, 3
CFR 2001 Comp., p. 750; Executive Order 13279, 67 FR 77141, 3 CFR
2002 Comp., p. 258.
0
8. Part 2 is amended by adding a new subpart D to read as follows:
PART 2--GENERAL REGULATIONS
* * * * *
Subpart D--Equal Treatment in Department of Labor Programs for
Religious Organizations; Protection of Religious Liberty of
Department of Labor Social Service Providers and Beneficiaries
Sec.
2.30 Purpose.
2.31 Definitions.
2.32 Equal participation of religious organizations.
2.33 Responsibilities of DOL, DOL social service providers and State
and local governments administering DOL support.
2.34 Application to State and local funds.
2.35 Effect of DOL support on Title VII employment nondiscrimination
requirements and on other existing statutes.
2.36 Status of nonprofit organizations.
Sec. 2.30 Purpose.
The purpose of the regulations in this subpart is to ensure that
DOL-supported social service programs are open to all qualified
organizations, regardless of the organizations' religious character,
and to establish clearly the permissible uses to which DOL support for
social service programs may be put, and the conditions for receipt of
such support. In addition, this proposed rule is designed to ensure
that the Department's social service programs are implemented in a
manner consistent with the requirements of the Constitution, including
the Religion Clauses of the First Amendment.
Sec. 2.31 Definitions.
As used in the regulations in this subpart:
(a) The term Federal financial assistance means assistance that
non-Federal entities (including State and local governments) receive or
administer in the form of grants, contracts, loans, loan guarantees,
property, cooperative agreements, direct appropriations, or other
direct or indirect assistance, but does not include a tax credit,
deduction or exemption.
(b) The term social service program means a program that is
administered or supported by the Federal Government, or by a State or
local government using Federal financial assistance, and that provides
services directed at reducing poverty, improving opportunities for low-
income children, revitalizing low-income communities, empowering low-
income families and low-income individuals to become self-sufficient,
or otherwise helping people in need. Such programs include, but are not
limited to, the following:
(1) Child care services and services to meet the special needs of
children, older individuals, and individuals with
[[Page 41892]]
disabilities (including physical, mental, or emotional disabilities);
(2) Job training and related services, and employment services;
(3) Information, referral, and counseling services;
(4) Literacy and mentoring programs; and
(5) Services for the prevention and treatment of juvenile
delinquency and substance abuse, services for the prevention of crime
and the provision of assistance to the victims and the families of
criminal offenders, and services related to intervention in, and
prevention of domestic violence.
(c) The term DOL means the U.S. Department of Labor.
(d) The term DOL-supported social service program, DOL social
service program, or DOL program means a social service program, as
defined in paragraph (b) of this section, that is administered by or
for DOL with DOL support. Such programs include, but are not limited
to, the One Stop Career Center System, the Job Corps, and other
programs supported through the Workforce Investment Act.
(e) The term DOL social service provider means any non-Federal
organization, other than a State or local government, that seeks or
receives DOL support as defined in paragraph (g) of this section, or
participates in DOL programs other than as the ultimate beneficiary of
such programs.
(f) The term DOL social service intermediary provider means any DOL
social service provider that, as part of its duties, selects
subgrantees to receive DOL support or subcontractors to provide DOL-
supported services, or has the same duties under this part as a
governmental entity.
(g) The term DOL support means Federal financial assistance, as
well as procurement funding provided to a non-Federal organization,
including a State or local government, to support the organization's
administration of or participation in a DOL social service program as
defined in paragraph (d) of this section.
Sec. 2.32 Equal participation of religious organizations.
(a) Religious organizations must be eligible, on the same basis as
any other organization, to seek DOL support or participate in DOL
programs for which they are otherwise eligible. DOL, DOL social service
intermediary providers, as well as State and local governments
administering DOL support, must not discriminate for or against an
organization on the basis of the organization's religious character or
affiliation, although this requirement does not preclude DOL, DOL
social service providers, or State and local governments administering
DOL support from accommodating religion in a manner consistent with the
Establishment Clause. In addition, because this rule does not affect
existing constitutional requirements, DOL, DOL social service providers
(insofar as they may otherwise be subject to any constitutional
requirements), and State and local governments administering DOL
support must continue to comply with otherwise applicable
constitutional principles, including, among others, those articulated
in the Establishment, Free Speech, and Free Exercise Clauses of the
First Amendment to the Constitution.
(b) A religious organization that is a DOL social service provider
retains its independence from Federal, State, and local governments and
must be permitted to continue to carry out its mission, including the
definition, practice, and expression of its religious beliefs, subject
to the provisions of Sec. 2.33 of this subpart. Among other things,
such a religious organization must be permitted to:
(1) Use its facilities to provide DOL-supported social services
without removing or altering religious art, icons, scriptures, or other
religious symbols from those facilities; and
(2) Retain its authority over its internal governance, including
retaining religious terms in its name, selecting its board members on a
religious basis, and including religious references in its mission
statements and other governing documents.
(c) A grant document, contract or other agreement, covenant,
memorandum of understanding, policy, or regulation that is used by DOL,
a State or local government administering DOL support, or a DOL social
service intermediary provider must not require only religious
organizations to provide assurances that they will not use direct DOL
support for inherently religious activities. Any such requirements must
apply equally to both religious and other organizations. All
organizations, including religious ones, that are DOL social service
providers must carry out DOL-supported activities in accordance with
all applicable legal and programmatic requirements, including those
prohibiting the use of direct DOL support for inherently religious
activities. A grant document, contract or other agreement, covenant,
memorandum of understanding, policy, or regulation that is used by DOL,
a State or local government, or a DOL social service intermediary
provider in administering a DOL social service program must not
disqualify organizations from receiving DOL support or participating in
DOL programs on the grounds that such organizations are motivated or
influenced by religious faith to provide social services, have a
religious character or affiliation, or lack a religious component.
Sec. 2.33 Responsibilities of DOL, DOL social service providers and
State and local governments administering DOL support.
(a) DOL, DOL social service intermediary providers, DOL social
service providers in their use of direct DOL support, and State and
local governments administering DOL support must not, when providing
social services, discriminate for or against a current or prospective
program beneficiary on the basis of religion or religious belief. This
requirement does not preclude DOL, DOL social service intermediary
providers, or State or local governments administering DOL support from
accommodating religion in a manner consistent with the Establishment
Clause of the First Amendment to the Constitution.
(b)(1) DOL, DOL social service providers, and State and local
governments administering DOL support must ensure that they do not use
direct DOL support for inherently religious activities such as worship,
religious instruction, or proselytization. DOL social service providers
must be permitted to offer inherently religious activities so long as
they offer those activities separately in time or location from social
services receiving direct DOL support, and participation in the
inherently religious activities is voluntary for the beneficiaries of
social service programs receiving direct DOL support. For example,
participation in an inherently religious activity must not be a
condition for participating in a directly-supported social service
program.
(2) This regulation is not intended to and does not restrict the
exercise of rights or duties guaranteed by the Constitution. For
example, program officials must not impermissibly restrict the ability
of program beneficiaries or DOL social service providers to freely
express their views and to exercise their right to religious freedom.
Additionally, subject to reasonable and permissible time, place and
manner restrictions, residential facilities that receive DOL support
must permit residents to engage in voluntary religious activities,
including holding religious services, at these facilities.
(3) Notwithstanding the requirements of paragraph (b)(1), and to
the extent
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otherwise permitted by Federal law (including constitutional
requirements), direct DOL support may be used to support inherently
religious activities, and such activities need not be provided
separately in time or location from other DOL-supported activities,
under the following circumstances:
(i) Where DOL support is provided to chaplains to work with inmates
in prisons, detention facilities, or community correction centers
through social service programs;
(ii) Where DOL support is provided to social service programs in
prisons, detention facilities, or community correction centers, in
which social service organizations assist chaplains in carrying out
their duties; or
(iii) Where DOL-supported social service programs involve such a
degree of government control over the program environment that
religious exercise would be significantly burdened absent affirmative
steps by DOL or its social service providers.
(c) To the extent otherwise permitted by Federal law, the
restrictions set forth in this section regarding the use of direct DOL
support do not apply to social service programs where DOL support is
provided to a religious or other non-governmental organization
indirectly within the meaning of the Establishment Clause of the First
Amendment to the Constitution. Religious or other non-governmental
organizations will be considered to have received support indirectly,
for example, if as a result of a program beneficiary's genuine and
independent choice the beneficiary redeems a voucher, coupon, or
certificate that allows the beneficiary to choose the service provider,
or some other mechanism is provided to ensure that beneficiaries have a
genuine and independent choice among providers or program options. All
organizations must, however, satisfy all applicable legal and
programmatic requirements.
Sec. 2.34 Application to State and local funds.
If a State or local government voluntarily contributes its own
funds to supplement activities carried out under the applicable
programs, the State or local government has the option to separate out
the Federal funds or commingle them. If the funds are commingled, then
the provisions of this subpart apply to all of the commingled funds in
the same manner, and to the same extent, as the provisions apply to the
Federal assistance. State funds that are contributed pursuant to the
requirements of a matching or grant agreement are considered to be
commingled funds.
Sec. 2.35 Effect of DOL support on Title VII employment
nondiscrimination requirements and on other existing statutes.
A religious organization's exemption from the Federal prohibition
on employment discrimination on the basis of religion, set forth in
Sec. 702(a) of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-1,
is not forfeited when the organization receives direct or indirect DOL
support. Some DOL programs, however, were established through Federal
statutes containing independent statutory provisions requiring that
recipients refrain from discriminating on the basis of religion.
Accordingly, to determine the scope of any applicable requirements,
recipients and potential recipients should consult with the appropriate
DOL program official or with the Civil Rights Center, U.S. Department
of Labor, 200 Constitution Avenue, NW., Room N4123, Washington, DC
20210, (202) 693-6500. Individuals with hearing or speech impairments
may access this telephone number via TTY by calling the toll-free
Federal Information Relay Service at 1-800-877-8339.
Sec. 2.36 Status of nonprofit organizations.
(a) In general, DOL does not require that an organization,
including a religious organization, obtain tax-exempt status under
section 501(c)(3) of the Internal Revenue Code in order to be eligible
for Federal financial assistance under DOL social service programs.
Many such programs, however, do require an organization to be a
``nonprofit organization'' in order to be eligible for such support.
Individual solicitations that require organizations to have nonprofit
status must specifically so indicate in the eligibility section of the
solicitation. In addition, any solicitation for a program that requires
an organization to maintain tax-exempt status must expressly state the
statutory authority for requiring such status. For assistance with
questions about a particular solicitation, applicants should contact
the DOL program office that issued the solicitation.
(b) Unless otherwise provided by statute, in DOL programs in which
an applicant must show that it is a nonprofit organization, the
applicant must be permitted to do so by any of the following means:
(1) Proof that the Internal Revenue Service currently recognizes
the applicant as tax exempt under section 501(c)(3) of the Internal
Revenue Code;
(2) A statement from a State taxing body or the State Secretary of
State certifying that:
(i) the organization is a nonprofit organization operating within
the State; and
(ii) no part of its net earnings may lawfully benefit any private
shareholder or individual;
(3) A certified copy of the applicant's certificate of
incorporation or similar document that clearly establishes the
nonprofit status of the applicant; or
(4) Any item described in paragraphs (b)(1) through (b)(3) of this
section, if that item applies to a State or national parent
organization, together with a statement by the State or national parent
organization that the applicant is a local nonprofit affiliate of the
organization.
PART 37--IMPLEMENTATION OF THE NONDISCRIMINATION AND EQUAL
OPPORTUNITY PROVISIONS OF THE WORKFORCE INVESTMENT ACT OF 1998
(WIA)
0
9. The authority citation for part 37 is revised to read as follows:
Authority: Sections 134(b), 136(d)(2)(F), 136(e), 172(a),
183(c), 185(d)(1)(E), 186, 187 and 188 of the Workforce Investment
Act 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; Title IX of
the Education Amendments of 1972, as amended, 29 U.S.C. 1681;
Executive Order 13198, 66 FR 8497, 3 CFR 2001 Comp., p. 750; and
Executive Order 13279, 67 FR 77141, 3 CFR 2002 Comp., p. 258.
0
10. In Sec. 37.6, paragraph (f)(1) and the section heading are revised
to read as follows:
Sec. 37.6 What specific discriminatory actions, based on prohibited
grounds other than disability, are prohibited by this part, and what
limitations are there related to religious activities?
* * * * *
(f)(1) 29 CFR part 2, subpart D governs the circumstances under
which DOL support, including WIA Title I financial assistance, may be
used to employ or train participants in religious activities. Under
that subpart, such assistance may be used for such employment or
training only when the assistance is provided indirectly within the
meaning of the Establishment Clause of the U.S. Constitution, and not
when the assistance is provided directly. As explained in that subpart,
assistance provided through an Individual Training Account is generally
considered indirect, and other mechanisms may also be considered
indirect. See also Sec. Sec. 667.266 and 667.275 of 20 CFR. 29 CFR
part 2, subpart D also contains requirements
[[Page 41894]]
related to equal treatment of religious organizations in Department of
Labor programs, and to protection of religious liberty for Department
of Labor social service providers and beneficiaries.
* * * * *
[FR Doc. 04-15707 Filed 7-8-04; 8:45 am]
BILLING CODE 4510-23-P