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29 CFR 34.1
TITLE 29--LABOR
PART 34--IMPLEMENTATION OF THE NONDISCRIMINATION
AND EQUAL OPPORTUNITY REQUIREMENTS OF THE
JOB TRAINING PARTNERSHIP ACT OF 1982, AS AMENDED (JTPA)
Subpart A--General Provisions
Sec.
34.1 Purpose; application.
34.2 Definitions.
34.3 Discrimination prohibited.
34.4 Specific discriminatory actions prohibited on the ground of race,
color, religion, sex, national origin, age, political
affiliation or belief, citizenship, or participation in JTPA.
34.5 Specific discriminatory actions prohibited on the ground of
disability.
34.6 Communications with individuals with disabilities.
34.7 Employment practices.
34.8 Intimidation and retaliation prohibited.
34.9 Designation of responsible office; rulings and interpretations.
34.10 [Reserved]
34.11 Effect of other obligations or limitations.
34.12 Delegation and coordination.
Subpart B--Recordkeeping and Other Affirmative Obligations of Recipients
34.20 Assurance required; duration of obligation; covenants.
34.21 Equitable services.
34.22 Designation of Equal Opportunity Officer.
34.23 Dissemination of policy.
34.24 Data and information collection; confidentiality.
Subpart C--Governor's Responsibilities to Implement the
Nondiscrimination and Equal Opportunity Requirements of JTPA
34.30 Application.
34.31 Recordkeeping.
34.32 Oversight and liability.
34.33 Methods of Administration.
34.34 Monitoring.
Subpart D--Compliance Procedures
34.40 Compliance reviews.
34.41 Notice to Show Cause.
34.42 Adoption of discrimination complaint processing procedures.
34.43 Complaints and investigations.
34.44 Corrective and remedial action.
34.45 Notice of violation; written assurances; Conciliation Agreements.
34.46 Final Determination.
34.47 Notice of finding of noncompliance.
34.48 Notification of Breach of Conciliation Agreement.
Subpart E--Federal Procedures for Effecting Compliance
34.50 General.
34.51 Hearings.
34.52 Decision and post-termination proceedings.
34.53 Suspension, termination, denial or discontinuance of Federal
financial assistance under JTPA; alternate funds disbursal
procedure.
Authority: 20 U.S.C. 1681; 29 U.S.C. 794, 1501, 1551, 1573, 1574,
1575, 1576, 1577, 1578, 1579; 42 U.S.C. 2000d et seq., 6101.
Source: 58 FR 4750, Jan. 15, 1993, unless otherwise noted.
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Subpart A--General Provisions
Sec. 34.1 Purpose; application.
(a) Purpose. The purpose of this part is to implement the
nondiscrimination and equal opportunity provisions of the Job Training
Partnership Act of 1982, as amended (JTPA), which are contained in
section 167 of JTPA. Section 167 prohibits discrimination on the grounds
of race, color, religion, sex, national origin, age, disability,
political affiliation or belief, and for beneficiaries only, citizenship
or participation in JTPA. This part clarifies the application of the
nondiscrimination and equal opportunity provisions of JTPA and provides
uniform procedures for implementing them.
(b) Application of this part. This part applies to any recipient, as
defined in Sec. 34.2. This part also applies to the employment practices
of a recipient, as provided in Sec. 34.7.
(c) Effect of this part on other obligations.
(1) A recipient's compliance with this part shall satisfy any
obligation of the recipient to comply with 29 CFR part 31, implementing
title VI of the Civil Rights Act of 1964, as amended (title VI), and
with subparts A, D and E of 29 CFR part 32, implementing section 504 of
the Rehabilitation Act of 1973, as amended (section 504).
(2) However, compliance with this part shall not affect any
obligation of the recipient to comply with subparts B and C and appendix
A of 29 CFR part 32, which pertain to employment practices and
employment-related training, program accessibility, and accommodations
under section 504.
(3) Recipients that are also public entities or public
accommodations as defined by titles II and III of the Americans with
Disabilities Act of 1991 (ADA), should be aware of obligations imposed
pursuant to those titles.
(4) Compliance with this part does not affect, in any way, any
obligation that a recipient may have to comply with Executive Order
11246, as amended, section 503 of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 793), the affirmative action provisions of the
Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended
(38 U.S.C. 4212), the Equal Pay Act of 1963, as amended (29 U.S.C.
206d), title VII of the Civil Rights Act of 1964, as amended (42 U.S.C.
2000e et seq.), the Age Discrimination in Employment Act of 1967, as
amended (29 U.S.C. 621), title IX of the Education Amendments of 1972,
as amended (20 U.S.C. 1681), the Americans with Disabilities Act of 1990
(ADA) (42 U.S.C. 12101 et seq.) and their respective implementing
regulations.
(5) This rule does not preempt consistent State and local
requirements.
(6) The rule generally codifies and consolidates already existing
nondiscrimination and equal opportunity requirements. However, to the
extent that this rule imposes any new requirements, it is not intended
to have retroactive effect.
(d) Limitation of Application. This part does not apply to:
(1) Programs or activities funded by the Department exclusively
under laws other than JTPA;
(2) Contracts of insurance or guaranty;
(3) Federal financial assistance to a person who is the ultimate
beneficiary under any program;
(4) Federal procurement contracts, with the exception of contracts
to operate or provide services to Job Corps Centers; and
(5) Federally-operated Job Corps Centers. The operating Department
is responsible for enforcing the nondiscrimination and equal opportunity
laws to which such Centers are subject.
Sec. 34.2 Definitions.
As used in this part, the term:
Administrative Law Judge means a person appointed as provided in 5
U.S.C. 3105 and 5 CFR 930.203 and qualified under 5 U.S.C. 557 to
preside at hearings held under the nondiscrimination and equal
opportunity provisions of JTPA and this part.
Applicant means the person or persons seeking JTPA services who have
filed a completed application and for whom a formal eligibility
determination has been made. For State Employment Security Agency (SESA)
programs, applicant means the person or persons who make(s) application
to receive benefits or services from the State employment service agency
or the State unemployment compensation
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agency. See also the definitions of eligible applicant and participant
in this section.
Applicant for employment means the person or persons who make(s)
application for employment with a recipient of Federal financial
assistance under JTPA.
Application for assistance means the process by which required
documentation is provided to the Governor, recipient, or Department
prior to and as a condition of receiving Federal financial assistance
under JTPA (including both new and continuing assistance).
Application for benefits means the process by which written
information is provided by applicants or eligible applicants prior to
and as a condition of receiving benefits or services from a recipient of
financial assistance from the Department of Labor under JTPA.
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Assistant Secretary means the Assistant Secretary for Administration
and Management, United States Department of Labor.
Auxiliary aids or services includes--
(1) Qualified interpreters, notetakers, transcription services,
written materials, telephone handset amplifiers, assistive listening
systems, telephones compatible with hearing aids, closed caption
decoders, open and closed captioning, telecommunications devices for
deaf persons (TDDs), videotext displays, or other effective means of
making aurally delivered materials available to individuals with hearing
impairments;
(2) Qualified readers, taped texts, audio recordings, brailled
materials, large print materials, or other effective means of making
visually delivered materials available to individuals with visual
impairments;
(3) Acquisition or modification of equipment or devices; and
(4) Other similar services and actions.
Beneficiary means the person or persons intended by Congress to
receive benefits or services from a recipient of Federal financial
assistance under JTPA.
Citizenship: See Discrimination on the ground of citizenship.
Department means the U.S. Department of Labor (DOL), including its
agencies and organizational units.
Director means the Director, Directorate of Civil Rights (DCR),
Office of the Assistant Secretary for Administration and Management,
U.S. Department of Labor, or a designee authorized to act for the
Director.
Directorate means the Directorate of Civil Rights (DCR), Office of
the Assistant Secretary for Administration and Management, U.S.
Department of Labor.
Disability means, with respect to an individual, a physical or
mental impairment that substantially limits one or more of the major
life activities of such individual; a record of such an impairment; or
being regarded as having such an impairment.
(1)(i) The phrase physical or mental impairment means--
(A) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological, musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular, reproductive, digestive,
genitourinary, hemic and lymphatic, skin, and endocrine;
(B) Any mental or psychological disorder such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific
learning disabilities.
(ii) The phrase physical or mental impairment includes, but is not
limited to, such contagious and noncontagious diseases and conditions as
orthopedic, visual, speech and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, specific learning
disabilities, HIV disease (whether symptomatic or asymptomatic),
tuberculosis, drug addiction, and alcoholism. The term impairment does
not include homosexuality or bisexuality.
(2) The phrase major life activities means functions such as caring
for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.
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(3) The phrase has a record of such an impairment means has a
history of, or has been misclassified as having, a mental or physical
impairment that substantially limits one or more major life activities.
(4) The phrase is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but that is treated by the recipient as
constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the recipient as having such an impairment.
(5) Consistent with amendments to the Rehabilitation Act of 1973 and
to the JTPA, and with the ADA, this part uses the term disability in
place of the term handicap. The two terms are intended to have identical
meanings.
Discrimination on the ground of citizenship means a denial of
participation in programs or activities financially assisted in whole or
in part under JTPA to persons on the basis of their status as citizens
or nationals of the United States, lawfully admitted permanent resident
aliens, lawfully admitted refugees and parolees, or other individuals
authorized by the Attorney General to work in the United States.
Eligible applicant means an applicant who has been determined
eligible to participate in one or more titles under JTPA.
Entity means any corporation, partnership, joint venture,
unincorporated association, or State or local government, and any
agency, instrumentality or subdivision of such a government.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock, or other real or
personal property or interest in such property.
Federal financial assistance under JTPA means any grant, cooperative
agreement, loan, contract; any subgrant made with a recipient of a grant
or subcontract made pursuant to a JTPA contract; or any other
arrangement by which the Department provides or otherwise makes
available assistance under JTPA in the form of:
(1) Funds, including funds made available for the acquisition,
construction, renovation, restoration or repair of a building or
facility or any portion thereof;
(2) Services of Federal personnel; or
(3) Real or personal property or any interest in or use of such
property, including:
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration;
(ii) Proceeds from a subsequent transfer or lease of such property
if the Federal share of its fair market value is not returned to the
Federal Government; or
(iii) Any other thing of value by way of grant, loan, contract, or
cooperative agreement (other than a procurement contract or a contract
of insurance or guaranty).
Governor means the chief elected official of any State or his or her
designee.
Grant applicant means the entity which submits the required
documentation to the Governor, recipient, or the Department, prior to
and as a condition of receiving Federal financial assistance under JTPA.
Guideline means written informational material supplementing an
agency's regulations and provided to grant applicants and recipients to
provide program-specific interpretations of their responsibilities under
the regulations.
Illegal use of drugs means the use of drugs, the possession or
distribution of which is unlawful under the Controlled Substances Act.
Illegal use of drugs does not include the use of a drug taken under
supervision of a licensed health care professional, or other uses
authorized by the Controlled Substances Act or other provisions of
Federal law.
Individual with a disability means a person who has a disability, as
defined in this section. The term impairment does not include
homosexuality or bisexuality; therefore, the term individual with a
disability does not include an individual on the basis of homosexuality
or bisexuality.
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(1) The term individual with a disability does not include an
individual on the basis of:
(i) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(ii) Compulsive gambling, kleptomania, or pyromania; or
(iii) Psychoactive substance use disorders resulting from current
illegal use of drugs.
(2) The term individual with a disability also does not include an
individual who is currently engaging in the illegal use of drugs, when a
recipient acts on the basis of such use. This limitation should not be
construed to exclude as an individual with a disability an individual
who:
(i) Has successfully completed a supervised drug rehabilitation
program and is no longer engaging in the illegal use of drugs, or has
otherwise been rehabilitated successfully and is no longer engaging in
such use;
(ii) Is participating in a supervised rehabilitation program and is
no longer engaging in such use; or
(iii) Is erroneously regarded as engaging in such use, but is not
engaging in such use, except that it shall not be a violation of the
nondiscrimination and equal opportunity provisions of JTPA or this part
for a recipient to adopt or administer reasonable policies or
procedures, including but not limited to drug testing, designed to
ensure that an individual described in paragraph (2)(i) or (2)(ii) of
this definition is no longer engaging in the illegal use of drugs.
(3) With regard to employment, the term individual with a disability
does not include any individual who is an alcoholic whose current use of
alcohol prevents such individual from performing the duties of the job
in question or whose employment, by reason of such current alcohol
abuse, would constitute a direct threat to property or the safety of
others.
JTPA means the Job Training Partnership Act of 1982, as amended,
Public Law 97-300, 96 Stat. 1322 (29 U.S.C. 1501 et seq.), including the
Nontraditional Employment for Women Act of 1991, Public Law 102-235, 105
Stat. 1806 (29 U.S.C. 1501), and the Job Training Reform Amendments of
1992, Public Law 102-367, 106 Stat. 1021.
JTPA-funded program or activity means a program or activity,
operated by a recipient and funded under JTPA, for the provision of
services, financial aid, or other benefit to individuals (including but
not limited to education or training, health, welfare, housing, social
service, rehabilitation or other services, whether provided through
employees of the recipient or by others through contract or other
arrangements with the recipient, and including work opportunities and
cash, loan or other assistance to individuals), or for the provision of
facilities for furnishing services, financial aid, or other benefits to
individuals. It also includes services, financial aid, or other benefits
provided in facilities constructed with the aid of Federal financial
assistance under JTPA. It further includes services, financial aid, or
other benefits provided with the aid of any non-JTPA funds, property, or
other resources required to be expended or made available for the
program to meet matching requirements or other conditions which must be
met in order to receive the Federal financial assistance under JTPA.
Methods of Administration means the written document and supporting
documentation developed pursuant to Sec. 34.33.
National Programs means programs receiving Federal funds under JTPA
directly from the Department. Such programs include, but are not limited
to, programs funded under title IV of JTPA, such as the Migrant and
Seasonal Workers Programs, Native Americans Programs, Job Corps,
National Activities and such Veterans' Employment programs as are funded
by the Department. National programs also includes programs funded under
certain titles of the Nontraditional Employment for Women Act.
Noncompliance means a failure of a recipient to comply with any of
the applicable requirements of the nondiscrimination and equal
opportunity provisions of JTPA or this part.
Participant means an individual who has been determined to be
eligible to participate in and who is receiving
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services (except post-termination and follow-up services) under a
program authorized by JTPA. Participation shall be deemed to commence on
the first day, following determination of eligibility, on which the
participant began receiving subsidized employment, training, or other
services provided under JTPA.
Parties to a hearing means the Department and the grant applicant(s)
or recipient(s).
Prohibited ground means any basis upon which it is illegal to
discriminate under the nondiscrimination and equal opportunity
provisions of JTPA or this part, i.e., race, color, religion, sex,
national origin, age, disability, political affiliation or belief, and,
for beneficiaries only, citizenship or participation in JTPA.
Qualified individual with a disability means:
(1) With respect to employment, an individual with a disability who,
with or without reasonable accommodation, is capable of performing the
essential functions of the job in question;
(2) With respect to services, an individual with a disability who
meets the essential eligibility requirements for the receipt of such
services;
(3) With respect to employment and employment-related training
programs, an individual with a disability who meets the eligibility
requirements for participation in JTPA and who, with or without
reasonable accommodation, is capable of performing the essential
functions of the job or meets the qualifications of the training
program, as applicable.
Recipient means any entity to which Federal financial assistance
under any title of JTPA is extended, either directly or through the
Governor or through another recipient (including any successor,
assignee, or transferee of a recipient), but excluding the ultimate
beneficiaries of the JTPA-funded program or activity and the Governor.
Recipient includes, but is not limited to: Job Corps Centers and Center
operators (excluding federally-operated Job Corps Centers), State
Employment Security Agencies, State-level agencies that administer JTPA
funds, SDA grant recipients, Substate grant recipients and service
providers, as well as National Program recipients.
Respondent means the grant applicant or recipient against which a
complaint has been filed pursuant to the nondiscrimination and equal
opportunity provisions of JTPA or this part.
SDA grant recipient means the entity that receives JTPA funds for a
service delivery area (SDA) directly from the Governor.
Secretary means the Secretary of Labor, U.S. Department of Labor, or
his or her designee.
Service provider means the operator of any JTPA-funded program or
activity that receives funds from or through an SDA grant recipient or a
Substate grantee.
Small recipient means a recipient who serves fewer than 15
beneficiaries, and employs fewer than 15 employees at all times during a
grant year.
Solicitor means the Solicitor of Labor, U.S. Department of Labor, or
his or her designee.
State means the individual states of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,
American Samoa, Guam, Wake Island, the Commonwealth of the Northern
Mariana Islands, the Federated States of Micronesia, the Republic of the
Marshall Islands, and Palau.
State Employment Security Agency (SESA) means the State agency
which, under the State Administrator, contains both the State Employment
Service agency (State agency) and the State unemployment compensation
agency.
State Programs means programs funded in whole or in part under JTPA
wherein the Governor and/or State receives and disburses the grant to or
through SDA grant recipients or Substate grantees. Such programs include
but are not limited to those programs funded in whole or in part under
titles II or III of JTPA. State programs also includes State Employment
Security Agencies.
Substate grantee means that agency or organization selected to
administer programs pursuant to section 312(b) of JTPA. The Substate
grantee is the entity that receives title III funds for a
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substate area directly from the Governor.
Terminee means a participant terminating during the applicable
program year.
Sec. 34.3 Discrimination prohibited.
No individual in the United States shall, on the ground of race,
color, religion, sex, national origin, age, disability, political
affiliation or belief, and for beneficiaries only, citizenship or
participation in JTPA, be excluded from participation in, denied the
benefits of, subjected to discrimination under, or denied employment in
the administration of or in connection with any JTPA-funded program or
activity.
Sec. 34.4 Specific discriminatory actions prohibited on the ground of
race, color, religion, sex, national origin, age, political
affiliation or belief, citizenship, or participation in JTPA.
(a) For the purposes of this section, prohibited ground means race,
color, religion, sex, national origin, age, political affiliation or
belief, and for beneficiaries only, citizenship or participation in
JTPA. A recipient shall not, directly or through contractual, licensing,
or other arrangements, on a prohibited ground:
(1) Deny an individual any service, financial aid, or benefit
provided under the JTPA-funded program or activity;
(2) Provide any service, financial aid, or benefit to an individual
which is different, or is provided in a different manner, from that
provided to others under the JTPA-funded program or activity;
(3) Subject an individual to segregation or separate treatment in
any matter related to his or her receipt of any service, financial aid,
or benefit under the JTPA-funded program or activity;
(4) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any service,
financial aid, or benefit under the JTPA-funded program or activity;
(5) Treat an individual differently from others in determining
whether he or she satisfies any admission, enrollment, eligibility,
membership, or other requirement or condition for any service, financial
aid, function or benefit provided under the JTPA-funded program or
activity;
(6) Deny or limit an individual with respect to any opportunity to
participate in the JTPA-funded program or activity, or afford him or her
an opportunity to do so which is different from that afforded others
under the JTPA-funded program or activity;
(7) Deny an individual the opportunity to participate as a member of
a planning or advisory body which is an integral part of the JTPA-funded
program or activity;
(8) Aid or perpetuate discrimination by providing significant
assistance to an agency, organization, or person that discriminates on a
prohibited ground in providing any service, financial aid, or benefit to
applicants or participants in the JTPA-funded program or activity;
(9) Refuse to accommodate a person's religious practices or beliefs,
unless to do so would result in undue hardship; or
(10) Otherwise limit on a prohibited ground an individual in
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving any aid, benefit, service, or training.
(b) In determining the types of services, financial aid or other
benefits or facilities that will be provided under any JTPA-funded
program or activity, or the class of individuals to whom or the
situations in which such services, financial aid, or other benefits or
facilities will be provided, a recipient shall not use, directly or
through contractual, licensing, or other arrangements, standards,
procedures or criteria that have the purpose or effect of subjecting
individuals to discrimination on a prohibited ground or that have the
purpose or effect of defeating or substantially impairing, on a
prohibited ground, accomplishment of the objectives of the JTPA-funded
program or activity. This paragraph applies to the administration of
JTPA- funded programs or activities providing services, financial aid,
benefits or facilities in any manner, including, but not limited to,
recruitment, registration, counseling, testing, guidance, selection,
placement, appointment, training, referral, promotion and retention.
(c) In determining the site or location of facilities, a grant
applicant or
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recipient may not make selections with the purpose or effect of
excluding individuals from, denying them the benefits of, or subjecting
them to discrimination on a prohibited ground, or with the purpose or
effect of defeating or substantially impairing the accomplishment of the
objectives of the program, or the nondiscrimination and equal
opportunity provisions of JTPA or this part.
(d) The exclusion of an individual from programs or activities
limited by Federal statute or Executive Order to a certain class or
classes of individuals of which the individual in question is not a
member is not prohibited by this part.
Sec. 34.5 Specific discriminatory actions prohibited on the ground of
disability.
(a) In providing any aid, benefit, service or training under a JTPA-
funded program or activity, a recipient shall not, directly or through
contractual, licensing, or other arrangements, on the ground of
disability:
(1) Deny a qualified individual with a disability the opportunity to
participate in or benefit from the aid, benefit, service or training;
(2) Afford a qualified individual with a disability an opportunity
to participate in or benefit from the aid, benefit, service or training
that is not equal to that afforded others;
(3) Provide a qualified individual with a disability with an aid,
benefit, service or training that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(4) Provide different or separate aid, benefits, or services to
individuals with disabilities or to any class of individuals with
disabilities unless such action is necessary to provide qualified
individuals with disabilities with aid, benefits, services or training
that are as effective as those provided to others;
(5) Aid or perpetuate discrimination against a qualified individual
with a disability by providing significant assistance to an agency,
organization, or person that discriminates on the basis of disability in
providing any aid, benefit, service or training to participants;
(6) Deny a qualified individual with a disability the opportunity to
participate as a member of planning or advisory boards;
(7) Otherwise limit a qualified individual with a disability in
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving any aid, benefit, service or training.
(b) A recipient may not deny a qualified individual with a
disability the opportunity to participate in JTPA-funded programs or
activities despite the existence of permissibly separate or different
programs or activities.
(c) A recipient shall administer JTPA-funded programs and activities
in the most integrated setting appropriate to the needs of qualified
individuals with disabilities.
(d) A recipient may not, directly or through contractual or other
arrangements, utilize criteria or administrative methods:
(1) That have the effect of subjecting qualified individuals with
disabilities to discrimination on the ground of disability;
(2) That have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the JTPA-funded program or
activity with respect to individuals with disabilities; or
(3) That perpetuate the discrimination of another entity if both
entities are subject to common administrative control or are agencies of
the same state.
(e) In determining the site or location of facilities, a grant
applicant or recipient may not make selections with the purpose or
effect of excluding individuals with disabilities from, denying them the
benefits of, or otherwise subjecting them to discrimination under any
JTPA-funded program or activity, or with the purpose or effect of
defeating or substantially impairing the accomplishment of the
objectives of the JTPA-funded program or activity or this part with
respect to individuals with disabilities.
(f) As used in this section, references to the aid, benefit, service
or training provided under a JTPA-funded program
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or activity include any aid, benefit, service or training provided in or
through a facility that has been constructed, expanded, altered, leased,
rented, or otherwise acquired, in whole or in part, with Federal
financial assistance under JTPA.
(g) The exclusion of an individual without a disability from the
benefits of a program limited by Federal statute or Executive Order to
individuals with disabilities or the exclusion of a specific class of
individuals with disabilities from a program limited by Federal statute
or Executive Order to a different class of individuals with disabilities
is not prohibited by this part.
(h) This part does not require a recipient to provide to individuals
with disabilities: personal devices, such as wheelchairs; individually
prescribed devices, such as prescription eyeglasses or hearing aids;
readers for personal use or study; or services of a personal nature
including assistance in eating, toileting, or dressing.
Sec. 34.6 Communications with individuals with disabilities.
(a) Recipients shall take appropriate steps to ensure that
communications with beneficiaries, applicants, eligible applicants,
participants, applicants for employment, employees and members of the
public who are individuals with disabilities, are as effective as
communications with others.
(b) A recipient shall furnish appropriate auxiliary aids or services
where necessary to afford individuals with disabilities an equal
opportunity to participate in, and enjoy the benefits of, the JTPA-
funded program or activity. In determining what type of auxiliary aid or
service is necessary, such recipient shall give primary consideration to
the requests of the individual with a disability.
(c) Where a recipient communicates with beneficiaries, applicants,
eligible applicants, participants, applicants for employment and
employees by telephone, telecommunications devices for individuals with
hearing impairments (TDDs), or equally effective communications systems
shall be used.
(d) A recipient shall ensure that interested persons, including
persons with visual or hearing impairments, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(e) A recipient shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(f) This section does not require a recipient to take any action
that it can demonstrate would result in a fundamental alteration in the
nature of a service, program, or activity or in undue financial and
administrative burdens.
(1) In those circumstances where a recipient believes that the
proposed action would fundamentally alter the JTPA-funded program,
activity, or service, or would result in undue financial and
administrative burdens, such recipient has the burden of proving that
compliance with this section would result in such alteration or burdens.
(2) The decision that compliance would result in such alteration or
burdens must be made by the recipient after considering all resources
available for use in the funding and operation of the JTPA-funded
program, activity, or service and must be accompanied by a written
statement of the reasons for reaching that conclusion.
(3) If an action required to comply with this section would result
in such an alteration or such burdens, the recipient shall take any
other action that would not result in such an alteration or such burdens
but would nevertheless ensure that, to the maximum extent possible,
individuals with disabilities receive the benefits or services provided
by the recipient.
Sec. 34.7 Employment practices.
(a) As used in this part, the term ``employment practices''
includes, but is not limited to, recruitment or recruitment advertising,
selection, placement, layoff or termination, upgrading, demotion or
transfer, training, participation in upward mobility programs, rates of
pay or other forms of compensation, and use of facilities and
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other terms and conditions of employment.
(b) Discrimination on the ground of race, color, religion, sex,
national origin, age, disability, or political affiliation or belief is
prohibited in employment practices in the administration of, or in
connection with, any JTPA-funded program or activity.
(c) Employee selection procedures. In implementing this section, a
recipient shall comply with the Uniform Guidelines on Employee Selection
Procedures, 41 CFR part 60-3.
(d) Standards for employment-related investigations and reviews. In
any investigation or compliance review, the Director shall consider EEOC
regulations, guidelines and appropriate case law in determining whether
a recipient has engaged in an unlawful employment practice.
(e) As provided in Sec. 34.1(c)(2) of this part, this rule does not
affect in any way the obligation of recipients to comply with subparts B
and C and appendix A of 29 CFR part 32, implementing the requirements of
section 504 pertaining to employment practices and employment-related
training, program accessibility, and accommodations. Therefore, this
section should not be understood to constitute an exhaustive list of
employment-related nondiscrimination and equal opportunity obligations
on the ground of disability.
(f) Recipients that are also employers covered by titles I and II of
the ADA should be aware of obligations imposed pursuant to those titles.
See 29 CFR part 1630 and 28 CFR part 35.
(g) This rule does not preempt consistent State and local
requirements.
Sec. 34.8 Intimidation and retaliation prohibited.
A recipient shall not discharge, intimidate, retaliate, threaten,
coerce or discriminate against any person because such person has: filed
a complaint; opposed a prohibited practice; furnished information;
assisted or participated in any manner in an investigation, review,
hearing or any other activity related to administration of, or exercise
of authority under, or privilege secured by, the nondiscrimination and
equal opportunity provisions of JTPA or this part; or otherwise
exercised any rights and privileges under the nondiscrimination and
equal opportunity provisions of JTPA or this part. The sanctions and
penalties contained in section 167 of JTPA or this part may be imposed
against any recipient that engages in any such proscribed activity or
fails to take appropriate steps to prevent such activity.
Sec. 34.9 Designation of responsible office; rulings and
interpretations.
(a) The Directorate of Civil Rights (DCR), in the Office of the
Assistant Secretary for Administration and Management, is responsible
for administering and enforcing the nondiscrimination and equal
opportunity provisions of JTPA and this part and for developing and
issuing policies, standards, guidelines and procedures for effecting
compliance.
(b) The Director shall make any rulings under or interpretations of
the nondiscrimination and equal opportunity provisions of JTPA or this
part.
Sec. 34.10 [Reserved]
Sec. 34.11 Effect of other obligations or limitations.
(a) Effect of State or local law or other requirements. The
obligation to comply with the nondiscrimination and equal opportunity
provisions of JTPA or this part shall not be obviated or alleviated by
any State or local law or other requirement that, on a prohibited
ground, prohibits or limits an individual's eligibility to receive
services, compensation or benefits, to participate in any JTPA-funded
program or activity, or to be employed by any recipient, or to practice
any occupation or profession.
(b) Effect of private organization rules. The obligation to comply
with the nondiscrimination and equal opportunity provisions of JTPA and
this part shall not be obviated or alleviated by any rule or regulation
of any private organization, club, league or association that, on a
prohibited ground, prohibits or limits an individual's eligibility to
participate in any JTPA-funded program or activity to which this part
applies.
(c) Effect of the availability of employment opportunities. The
availability of
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future employment opportunities, or lack thereof, in any occupation or
profession for qualified individuals with disabilities or persons of a
certain race, color, religion, sex, national origin, age, political
affiliation or belief, or citizenship shall not be considered in
recruiting, selecting or placing individuals in programs or activities.
Sec. 34.12 Delegation and coordination.
(a) The Secretary may from time to time assign to officials of other
departments or agencies of the Government (with the consent of such
department or agency) responsibilities in connection with the
effectuation of the nondiscrimination and equal opportunity provisions
of JTPA and this part (other than responsibility for final decisions
pursuant to Sec. 34.42), including the achievement of effective
coordination and maximum uniformity within the Department and within the
executive branch of the Government in the application of the
nondiscrimination and equal opportunity provisions of JTPA or this part
to similar programs and similar situations.
(b) Any action taken, determination made, or requirement imposed by
an official of another department or agency acting pursuant to an
assignment of responsibility under this subsection shall have the same
effect as though such action had been taken by the Director.
(c) Whenever a compliance review or complaint investigation under
this part reveals possible violation of Executive Order 11246, as
amended, section 503 of the Rehabilitation Act of 1973, as amended, the
affirmative action provisions of the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, as amended (38 U.S.C. 4212), the Equal Pay Act
of 1963, as amended, title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act of 1967, as amended,
the Americans With Disabilities Act, or any other Federal civil rights
law, that is not also a violation of the nondiscrimination and equal
opportunity provisions of JTPA or this part, the Director shall attempt
to notify the appropriate agency and provide it with all relevant
documents and information.
Subpart B--Recordkeeping and Other Affirmative Obligations of Recipients
Sec. 34.20 Assurance required; duration of obligation; covenants.
(a) Assurance. (1) Each application for Federal financial assistance
under JTPA, as defined in Sec. 34.2, shall include an assurance, in the
following form, with respect to the operation of the JTPA-funded program
or activity and all agreements or arrangements to carry out the JTPA-
funded program or activity:
As a condition to the award of financial assistance under JTPA from
the Department of Labor, the grant applicant assures, with respect to
operation of the JTPA-funded program or activity and all agreements or
arrangements to carry out the JTPA-funded program or activity, that it
will comply fully with the nondiscrimination and equal opportunity
provisions of the Job Training Partnership Act of 1982, as amended
(JTPA), including the Nontraditional Employment for Women Act of 1991;
title VI of the Civil Rights Act of 1964, as amended; section 504 of the
Rehabilitation Act of 1973, as amended; the Age Discrimination Act of
1975, as amended; title IX of the Education Amendments of 1972, as
amended; and with all applicable requirements imposed by or pursuant to
regulations implementing those laws, including but not limited to 29 CFR
part 34. The United States has the right to seek judicial enforcement of
this assurance.
(2) The assurance shall be deemed incorporated by operation of law
in the grant, cooperative agreement, contract or other arrangement
whereby Federal financial assistance under JTPA is made available,
whether or not it is physically incorporated in such document and
whether or not there is a written agreement between the Department and
the recipient, between the Department and the Governor, between the
Governor and the recipient, or between recipients. The assurance may
also be incorporated by reference in such grants, cooperative
agreements, contracts or other arrangements.
(b) Continuing State programs. Each application by a State or a
State agency to carry out a continuing JTPA-funded program or activity
shall, as a
[[Page 362]]
condition to its approval and the extension of any Federal financial
assistance under JTPA pursuant to the application, provide a statement
that the JTPA-funded program or activity is (or, in the case of a new
JTPA-funded program or activity, will be) conducted in compliance with
the nondiscrimination and equal opportunity provisions of JTPA and this
part. The State shall certify that it has developed and maintains a
Methods of Administration pursuant to Sec. 34.33.
(c) Duration and scope of obligation. (1) Where the Federal
financial assistance under JTPA is to provide or is in the form of
personal property or real property or interest therein or structures
thereon, the assurance shall obligate the recipient, or (in the case of
a subsequent transfer) the transferee, for the period during which the
property is used for a purpose for which Federal financial assistance
under JTPA is extended, or for as long as the recipient retains
ownership or possession of the property, whichever is longer.
(2) In all other cases, the assurance shall obligate the recipient
for the period during which Federal financial assistance under JTPA is
extended.
(d) Covenants. (1) Where Federal financial assistance under JTPA is
provided in the form of a transfer of real property, structures, or
improvements thereon, or interests therein, the instrument effecting or
recording the transfer shall contain a covenant assuring
nondiscrimination and equal opportunity for the period during which the
real property is used for a purpose for which the Federal financial
assistance under JTPA is extended.
(2) Where no Federal transfer of real property or interest therein
from the Federal Government is involved, but real property or an
interest therein is acquired or improved under a program of Federal
financial assistance under JTPA, the recipient shall include such
covenant described in paragraph (d)(1) of this section in the instrument
effecting or recording any subsequent transfer of such property.
(3) When the property is obtained from the Federal Government, such
covenant described in paragraph (d)(1) of this section may also include
a condition coupled with a right of reverter to the Department in the
event of a breach of the covenant.
Sec. 34.21 Equitable services.
Recipients shall make efforts to provide equitable services among
substantial segments of the population eligible for participation in
JTPA. Such efforts shall include but not be limited to outreach efforts
to broaden the composition of the pool of those considered for
participation, to include members of both sexes, the various race/
ethnicity and age groups, and individuals with disabilities.
Sec. 34.22 Designation of Equal Opportunity Officer.
(a) A recipient, other than a small recipient or service provider as
defined in Sec. 34.2, shall designate an Equal Opportunity Officer to
coordinate its responsibilities under this part. Such responsibilities
include, but are not limited to, serving as the recipient's liaison with
the Directorate and overseeing the development and implementation of the
Methods of Administration pursuant to Sec. 34.33. The Equal Opportunity
Officer shall report on equal opportunity matters directly to the State
JTPA Director, Governor's JTPA Liaison, Job Corps Center Director, SESA
Administrator, or chief executive officer of the SDA or substate grant
recipient, as applicable. The Director may require the Equal Opportunity
Officer and his or her staff to undergo training, the expenses of which
shall be the responsibility of the recipient. The recipient shall make
public the name, title of position, address and telephone number of the
Equal Opportunity Officer.
(b) Recipients shall assign sufficient staff and resources to the
Equal Opportunity Officer to ensure compliance with the
nondiscrimination and equal opportunity provisions of JTPA and this
part.
(c) Small recipients shall designate an individual responsible for
the adoption and publication of complaint procedures and the processing
of complaints pursuant to Sec. 34.42.
(d) Service providers as defined by Sec. 34.2 shall not be required
to designate
[[Page 363]]
an Equal Opportunity Officer. The responsibility for ensuring service
provider compliance with the nondiscrimination and equal opportunity
provisions of JTPA and this part shall rest with the Governor, SDA grant
recipient or Substate grantee, as provided in the State's Methods of
Administration.
Sec. 34.23 Dissemination of policy.
(a) Initial and Continuing Notice. (l) A recipient shall provide
initial and continuing notice that it does not discriminate on any
prohibited ground, to: Applicants, eligible applicants, participants,
applicants for employment, employees, and members of the public,
including those with impaired vision or hearing, and unions or
professional organizations holding collective bargaining or professional
agreements with the recipient.
(2) The notice requirement imposed pursuant to paragraph (a)(1) of
this section requires, at a minimum, that the notice specified in
paragraph (a)(5) of this section be: posted prominently, in reasonable
numbers and places; disseminated in internal memoranda and other written
communications; included in handbooks or manuals; and made available to
each participant and made a part of the participant's file. The required
notice to the public applicable to generally-distributed publications is
contained in paragraph (b) of this section.
(3) The recipient shall provide that the initial and continuing
notice required by paragraph (a) of this section be provided in
appropriate formats to individuals with visual impairments. Where notice
has been given in an alternate format to a participant with a visual
impairment, a record that such notice has been given shall be made a
part of the participant's file.
(4) The notice required by paragraph (a) of this section must be
provided within 90 days of the effective date of this part or of the
date this part first applies to the recipient, whichever comes later.
(5) The notice required by paragraph (a) of this section shall
contain the following prescribed language:
Equal Opportunity Is the Law
This recipient is prohibited from discriminating on the ground of
race, color, religion, sex, national origin, age, disability, political
affiliation or belief, and for beneficiaries only, citizenship or
participation in programs funded under the Job Training Partnership Act,
as amended (JTPA), in admission or access to, opportunity or treatment
in, or employment in the administration of or in connection with, any
JTPA-funded program or activity. If you think that you have been
subjected to discrimination under a JTPA-funded program or activity, you
may file a complaint within 180 days from the date of the alleged
violation with the recipient's Equal Opportunity Officer (or the person
designated for this purpose), or you may file a complaint directly with
the Director, Directorate of Civil Rights (DCR), U.S. Department of
Labor, 200 Constitution Avenue NW., room N-4123, Washington, DC 20210.
If you elect to file your complaint with the recipient, you must wait
until the recipient issues a decision or until 60 days have passed,
whichever is sooner, before filing with DCR (see address above). If the
recipient has not provided you with a written decision within 60 days of
the filing of the complaint, you need not wait for a decision to be
issued, but may file a complaint with DCR within 30 days of the
expiration of the 60-day period. If you are dissatisfied with the
recipient's resolution of your complaint, you may file a complaint with
DCR. Such complaint must be filed within 30 days of the date you
received notice of the recipient's proposed resolution.
(6) The Governor, the SDA grant recipient or the Substate grantee,
as determined by the Governor in that State's Methods of Administration,
shall be responsible for meeting the notice requirement of paragraph (a)
of this section with respect to its service providers.
(7) Recipient's responsibility to provide notice. Whenever a
recipient passes on Federal financial assistance under JTPA to another
recipient, the recipient passing on such assistance shall provide the
recipient receiving the assistance with the notice prescribed in
paragraph (a)(5) of this section.
(b) Publications. (1) In recruitment brochures and other materials
which are ordinarily distributed to the public to describe programs
funded under JTPA or the requirements for participation by recipients
and participants, recipients shall indicate that the JTPA-funded program
or activity in
[[Page 364]]
question is an ``equal opportunity employer/program'' and that
``auxiliary aids and services are available upon request to individuals
with disabilities.'' Where such materials indicate that the recipient
may be reached by telephone, the materials shall state the telephone
number of the TDD or relay service used by the recipient, as required by
Sec. 34.6.
(2) Recipients required by law or regulation to publish or broadcast
program information in the news media shall ensure that such
publications and broadcasts state that the JTPA-funded program or
activity in question is an equal opportunity employer/program (or
otherwise indicate that discrimination in the JTPA-funded program or
activity is prohibited by Federal law), and indicate that auxiliary aids
and services are available upon request to individuals with
disabilities.
(3) A recipient shall not use or distribute a publication of the
type described in paragraph (b) of this section which suggests, by text
or illustration, that such recipient treats beneficiaries, applicants,
participants, employees or applicants for employment differently on any
prohibited ground specified in Sec. 34.1(a), except as such treatment is
otherwise permitted under Federal law or this part.
(c) Services or information in a language other than English. A
significant number or proportion of the population eligible to be served
or likely to be directly affected by a JTPA-funded program or activity
may need service or information in a language other than English in
order that they be effectively informed of or able to participate in the
JTPA-funded program or activity. In such circumstances, the recipient
shall take reasonable steps, considering the scope of the program and
the size and concentration of such population, to provide to such
persons, in appropriate languages, the information needed; the initial
and continuing notice required pursuant to paragraph (a) of this
section; and such written materials as are distributed pursuant to
paragraph (b) of this section.
(d) Orientation. The recipient shall, during each presentation to
orient new participants and/or new employees to its JTPA-funded program
or activity, include a discussion of participants' and/or employees'
rights under the nondiscrimination and equal opportunity provisions of
JTPA and this part, including the right to file a complaint of
discrimination with the recipient or the Director.
(e) As provided in Sec. 34.6, the recipient shall take appropriate
steps to ensure that communications with individuals with disabilities
are as effective as communications with others.
Sec. 34.24 Data and information collection; confidentiality.
(a) Data and information collection. The Director shall not require
submission of data that can be obtained from existing reporting
requirements or sources, including those of other agencies, if the
source is known and available to the Director.
(1) Each recipient shall collect such data and maintain such
records, in accordance with procedures prescribed by the Director, as
the Director finds necessary to determine whether the recipient has
complied or is complying with the nondiscrimination and equal
opportunity provisions of JTPA or this part.
(2) Such records shall include, but are not limited to, records on
applicants, eligible applicants, participants, terminees, employees and
applicants for employment. Each recipient shall record the race/
ethnicity, sex, age, and where known, disability status, of every
applicant, eligible applicant, participant, terminee, applicant for
employment and employee. Such information shall be stored in such a
manner as to ensure confidentiality and shall be used only for the
purposes of recordkeeping and reporting; determining eligibility, where
appropriate, for JTPA-funded programs or activities; determining the
extent to which the recipient is operating its JTPA-funded program or
activity in a nondiscriminatory manner; or other use authorized by the
nondiscrimination and equal opportunity provisions of JTPA or this part.
(3) In addition to the information which shall be collected,
maintained, and upon request, submitted to the Directorate pursuant to
paragraphs (a)(1) and (a)(2) of this section:
[[Page 365]]
(i) Each grant applicant and recipient shall promptly notify the
Director of any administrative enforcement actions or lawsuits filed
against it alleging discrimination on the ground of race, color,
religion, sex, national origin, age, disability, political affiliation
or belief, and for beneficiaries only, citizenship or participation in
JTPA;
(ii) Each grant applicant (as part of its application) and recipient
(as part of a compliance review conducted pursuant to Sec. 34.40 (b) or
(c), or monitoring activity carried out pursuant to Sec. 34.34) shall
provide: the name of any other Federal agency that conducted a civil
rights compliance review or complaint investigation during the two
preceding years in which the grant applicant or recipient was found to
be in noncompliance; and shall identify the parties to, the forum of,
and case numbers pertaining to, any administrative enforcement actions
or lawsuits filed against it during the two years prior to its
application (or, with respect to recipients, its renewal application)
which allege discrimination on the ground of race, color, religion, sex,
national origin, age, disability, political affiliation or belief,
citizenship or participation in JTPA;
(iii) Each recipient shall maintain a log of complaints filed with
it that allege discrimination on the ground of race, color, religion,
sex, national origin, age, disability, political affiliation or belief,
citizenship or participation in JTPA. The log shall include: the name
and address of the complainant; the ground of the complaint, i.e., race,
color, religion, sex, national origin, age, disability, political
affiliation or belief, citizenship or participation in JTPA; a
description of the complaint; the date the complaint was filed; the
disposition and date of disposition of the complaint; and other
pertinent information.
(4) At the discretion of the Director, grant applicants and
recipients may be required to provide such information and data as are
necessary to investigate complaints and conduct compliance reviews on
grounds prohibited under the nondiscrimination and equal opportunity
provisions of JTPA and this part, other than race/ethnicity, sex, age,
and disability.
(5) At the discretion of the Director, recipients may be required to
provide such particularized information and/or to submit such periodic
reports as the Director deems necessary to determine compliance with the
nondiscrimination and equal opportunity provisions of JTPA or this part.
(6) At the discretion of the Director, grant applicants may be
required to submit such particularized information as is necessary to
determine whether or not the grant applicant, if funded, would be able
to comply with the nondiscrimination and equal opportunity provisions of
JTPA or this part.
(7) Service Providers. A service provider's responsibility for
collecting and maintaining the information required pursuant to this
section may be assumed by the Governor, SDA grant recipient or Substate
grantee, as provided in the State's Methods of Administration.
(b) Access to sources of information. (1) Each grant applicant and
recipient shall permit access by the Director during normal business
hours to its premises and to its employees and participants, to the
extent that such individuals are on the premises during the course of
the investigation, for the purpose of conducting complaint
investigations, compliance reviews, monitoring activities associated
with a State's development and implementation of a Methods of
Administration, and inspecting and copying such books, records, accounts
and other materials as may be pertinent to ascertain compliance with and
ensure enforcement of the nondiscrimination and equal opportunity
provisions of JTPA or this part.
(2) Asserted considerations of privacy or confidentiality shall not
be a basis for withholding information from the Directorate and shall
not bar the Directorate from evaluating or seeking to enforce compliance
with the nondiscrimination and equal opportunity provisions of JTPA and
this part. Information obtained pursuant to the requirements of this
part shall be used only in connection with compliance and enforcement
activities pertinent to the nondiscrimination and equal opportunity
provisions of JTPA and this part. Whenever any information required of a
grant applicant or recipient
[[Page 366]]
is in the exclusive possession of another agency or institution which,
or person who, fails or refuses to furnish such information, the grant
applicant or recipient shall provide certification to the Directorate of
such refusal and the efforts it has made to obtain the information.
(c) Record retention requirements. (1) Each recipient shall maintain
for a period of not less than three years from the close of the
applicable program year, applicant, eligible applicant, participant,
terminee, employee and applicant for employment records; and such other
records as are required under this part or by the Director. (2) Records
regarding complaints and actions taken thereunder shall be maintained
for a period of not less than three years from the date of resolution of
the complaint.
(d) Confidentiality. The identity of any person who furnishes
information relating to, or assisting in, an investigation or a
compliance review shall be kept confidential to the extent possible,
consistent with a fair determination of the issues. A person whose
identity it is necessary to disclose shall be protected from retaliation
(see Sec. 34.8).
(e) Where designation of persons by race or ethnicity is required,
the guidelines of the Office of Management and Budget shall be used.
Subpart C--Governor's Responsibilities to Implement the
Nondiscrimination and Equal Opportunity Requirements of JTPA
Sec. 34.30 Application.
This subpart applies to State Programs as defined in Sec. 34.2.
However, the provisions of Sec. 34.32 (b) and (c) do not apply to State
Employment Security Agencies (SESAs), because the Governor's liability
for any noncompliance on the part of a SESA cannot be waived.
Sec. 34.31 Recordkeeping.
The Governor shall ensure that recipients collect and maintain
records in a manner consistent with the provisions of Sec. 34.24 and any
procedures prescribed by the Director pursuant to Sec. 34.24(a)(1). The
Governor shall further ensure that recipients are able to provide data
and reports in the manner prescribed by the Director.
Sec. 34.32 Oversight and liability.
(a) The Governor shall be responsible for oversight of all JTPA-
funded State programs. This responsibility includes ensuring compliance
with the nondiscrimination and equal opportunity provisions of JTPA and
this part, and negotiating with the recipient to secure voluntary
compliance when noncompliance is found under Sec. 34.45.
(b) The Governor and the recipient shall be jointly and severally
liable for all violations of the nondiscrimination and equal opportunity
provisions of JTPA and this part by the recipient, unless the Governor
has:
(1) Established and adhered to a Methods of Administration, pursuant
to Sec. 34.33, designed to give reasonable guarantee of the recipient's
compliance with such provisions;
(2) Entered into a written contract with the recipient which clearly
establishes the recipient's obligations regarding nondiscrimination and
equal opportunity;
(3) Acted with due diligence to monitor the recipient's compliance
with these provisions; and
(4) Taken prompt and appropriate corrective action to effect
compliance.
(c) If the Director determines that the Governor has demonstrated
substantial compliance with the requirements of paragraph (b) of this
section, he or she may recommend to the Secretary that the imposition of
sanctions against the Governor be waived and that sanctions be imposed
only against the noncomplying recipient.
Sec. 34.33 Methods of Administration.
(a)(1) Each Governor shall establish and adhere to a Methods of
Administration for State programs as defined in Sec. 34.2. In those
States in which one agency contains both SESA and JTPA programs, the
Governor may develop a combined Methods of Administration.
(2) Each Methods of Administration shall be designed to give
reasonable guarantee that all recipients will comply and are complying
with the nondiscrimination and equal opportunity provisions of JTPA and
this part.
[[Page 367]]
(b) The Methods of Administration shall be:
(1) In writing;
(2) Updated periodically as required by the Director; and
(3) Signed by the Governor.
(c) The Methods of Administration shall, at a minimum:
(1) Describe how the requirements of Secs. 34.20, 34.21, 34.22,
34.23, 34.24, 34.31, and 34.42 have been satisfied; and
(2) Include the following additional elements:
(i) A system for periodically monitoring the compliance of
recipients with this part, including a determination as to whether the
recipient is conducting its JTPA-funded program or activity in a
nondiscriminatory way;
(ii) A system for reviewing the nondiscrimination and equal
opportunity provisions of job training plans, contracts, assurances, and
other similar agreements;
(iii) Procedures for ensuring that recipients provide accessibility
to individuals with disabilities;
(iv) A system of policy communication and training to ensure that
members of the recipients' staffs who have been assigned
responsibilities pursuant to the nondiscrimination and equal opportunity
provisions of JTPA or this part are aware of and can effectively carry
out these responsibilities;
(v) Procedures for obtaining prompt corrective action or, as
necessary, applying sanctions when noncompliance is found; and
(vi) Supporting documentation to show that the commitments made in
the Methods of Administration have been and/or are being carried out.
Supporting documentation includes, but is not limited to: policy and
procedural issuances concerning required elements of the Methods of
Administration; copies of monitoring instruments and instructions;
evidence of the extent to which nondiscrimination and equal opportunity
policies have been developed and communicated pursuant to this part;
information reflecting the extent to which Equal Opportunity training,
including training called for by Sec. 34.22, is planned and/or has been
carried out; as applicable, reports of monitoring reviews and reports of
follow-up actions taken thereunder where violations have been found,
including, where appropriate, sanctions; and copies of any notification
made pursuant to Sec. 34.23.
(d) The Governor shall, within 180 days of the effective date of
this part:
(1) Develop and implement Methods of Administration consistent with
the requirements of this part, and
(2) Submit a copy of the Methods of Administration to the Director.
Sec. 34.34 Monitoring.
(a) The Director may periodically review the adequacy of the Methods
of Administration established by a Governor, as well as the adequacy of
the Governor's performance under that Methods of Administration, to
determine compliance with the requirements of Sec. 34.33. The Director
may review the Methods of Administration during a compliance review
under Sec. 34.40, or at another time.
(b) Nothing in this subpart shall limit or preclude the Director
from monitoring directly any JTPA recipient or from investigating any
matter necessary to determine a recipient's compliance with the
nondiscrimination and equal opportunity provisions of JTPA or this part.
(c) The procedures contained in subpart D of this part shall apply
to reviews or investigations undertaken pursuant to paragraphs (a) and
(b) of this section.
Subpart D--Compliance Procedures
Sec. 34.40 Compliance reviews.
(a) The Director may from time to time conduct pre- and post-
approval compliance reviews of grant applicants for and recipients of
Federal financial assistance under JTPA to determine compliance with the
nondiscrimination and equal opportunity provisions of JTPA and this
part. Techniques used in such reviews may include desk reviews, on-site
reviews, and off-site analyses.
(b) Pre-approval reviews. (1) As appropriate and necessary to ensure
compliance with the nondiscrimination and equal opportunity provisions
of JTPA or this part, the Director may review any application, or class
of applications, for Federal financial assistance under JTPA prior to
and as a condition
[[Page 368]]
of their approval. The basis for such review shall be the assurance
specified in Sec. 34.20, information and reports submitted by the grant
applicant pursuant to this part or guidelines published by the Director,
and any relevant records on file with the Department.
(2) Where the Director determines that the grant applicant for
Federal financial assistance under JTPA, if funded, would not comply
with the nondiscrimination and equal opportunity requirements of JTPA or
this part, the Director shall issue a Letter of Findings. Such Letter of
Findings shall advise the grant applicant, in writing, of:
(i) The preliminary findings of the review;
(ii) The proposed remedial or corrective action pursuant to
Sec. 34.44 and the time within which the remedial or corrective action
should be completed;
(iii) Whether it will be necessary for the grant applicant to enter
into a written Conciliation Agreement as described in Sec. 34.45; and
(iv) The opportunity to engage in voluntary compliance negotiations.
(3) If a grant applicant has agreed to certain remedial or
corrective actions in order to receive Federal financial assistance
under JTPA, the Department shall ensure that the remedial or corrective
actions have been taken or that a Conciliation Agreement has been
entered into, prior to approving the award of further assistance under
JTPA. If a grant applicant refuses or fails to take remedial or
corrective actions or to enter into a Conciliation Agreement, as
applicable, the Director shall follow the procedures outlined in
Sec. 34.46.
(4) The Director shall notify, in a timely manner, the departmental
granting agency of the findings of the pre-approval compliance review.
(c) Post-approval reviews. (1) The Director may initiate a post-
approval review of any recipient to determine compliance with the
nondiscrimination and equal opportunity provisions of JTPA and this
part. The initiation of a review may be based on, but need not be
limited to, the following: The results of routine program monitoring,
the nature of or incidence of complaints, the date of the last review,
and Congressional or community concerns.
(2) Such review shall be initiated by a Notification Letter,
advising the recipient of:
(i) The practices to be reviewed;
(ii) The programs to be reviewed;
(iii) The data to be submitted by the recipient within 30 days of
the receipt of the Notification Letter; and
(iv) The opportunity, at any time prior to receipt of the Final
Determination described in Sec. 34.46, to make a documentary or other
submission which explains, validates or otherwise addresses the
practices under review.
(3) Except as provided in Sec. 34.41(e), within 210 days of issuing
a Notification Letter initiating a review, the Director shall:
(i) Issue a Letter of Findings, which shall advise the recipient, in
writing, of:
(A) The preliminary findings of the review;
(B) Where appropriate, the proposed remedial or corrective action to
be taken, and the time by which such action should be completed, as
provided in Sec. 34.44;
(C) Whether it will be necessary for the recipient to enter into a
written assurance and/or Conciliation Agreement, as provided in
Sec. 34.45; and
(D) The opportunity to engage in voluntary compliance negotiations.
(ii) Where no violation is found, the recipient shall be so informed
in writing.
(4) The time limit for submitting data to the Director pursuant to
paragraph (c)(2)(iii) of this section may be modified by the Director.
Sec. 34.41 Notice to Show Cause.
(a) The Director may issue a Notice to Show Cause to a recipient
failing to comply with the requirements of this part, where such failure
results in the inability of the Director to make a finding. Such a
failure includes, but is not limited to, the failure or refusal to:
(1) Submit requested data within 30 days of the receipt of the
Notification Letter;
(2) Submit documentation requested during a compliance review; or
(3) Provide the Directorate access to a recipient's premises or
records during a compliance review.
[[Page 369]]
(b) The Notice to Show Cause shall contain:
(1) A description of the violation and a citation to the pertinent
nondiscrimination or equal opportunity provision(s) of JTPA and this
part;
(2) The corrective action necessary to achieve compliance or, as may
be appropriate, the concepts and principles of acceptable corrective or
remedial action and the results anticipated; and
(3) A request for a written response to the findings, including
commitments to corrective action or the presentation of opposing facts
and evidence.
(c) Such Notice to Show Cause shall give the recipient 30 days to
show cause why enforcement proceedings under the nondiscrimination and
equal opportunity provisions of JTPA or this part should not be
instituted. A recipient may make such a showing by, among other means:
(1) Correcting the violation(s) that brought about the Notice to
Show Cause and entering into a written assurance and/or entering into a
Conciliation Agreement, as appropriate, pursuant to Sec. 34.45(d);
(2) Demonstrating that the Directorate does not have jurisdiction;
or
(3) Demonstrating that the violation alleged by the Directorate did
not occur.
(d) If the recipient fails to show cause why enforcement proceedings
should not be initiated, the Director shall follow the procedures
outlined in Sec. 34.46.
(e) The 210 day requirement provided for in Sec. 34.40(c)(3) shall
be tolled during the pendency of a Notice to Show Cause.
Sec. 34.42 Adoption of discrimination complaint processing procedures.
(a) Each recipient shall adopt and publish procedures for processing
complaints that allege a violation of the nondiscrimination and equal
opportunity provisions of JTPA or this part. The procedures shall
provide for the prompt and equitable resolution of such complaints. In
the case of service providers, the procedures required by this paragraph
shall be adopted and published on behalf of the service provider by the
Governor, the SDA grant recipient or the Substate grantee, as provided
in the State's Methods of Administration.
(b) The recipient's Equal Opportunity Officer, or in the case of a
small recipient, the person designated pursuant to Sec. 34.22(c), shall
be responsible for the adoption and publication of procedures pursuant
to paragraph (a) of this section, and for ensuring that such procedures
are followed.
(c) A recipient who processes a complaint alleging a violation of
the nondiscrimination and equal opportunity provisions of JTPA or this
part shall provide the complainant with written notification of the
resolution within 60 days of the filing of the complaint. Such
notification shall include a statement of complainant's right to file a
complaint with the Director.
Sec. 34.43 Complaints and investigations.
(a) Who may file. Any person who believes that he or she or any
specific class of individuals has been or is being subjected to
discrimination prohibited by the nondiscrimination and equal opportunity
provisions of JTPA or this part may file a written complaint by him or
herself or by a representative.
(b) Where to file. The complaint may be filed either with the
recipient or with the Director.
(c) Time for filing. A complaint filed pursuant to this part must be
filed within 180 days of the alleged discrimination. The Director, for
good cause shown, may extend the filing time. This time period for
filing is for the administrative convenience of the Directorate and does
not create a defense for the respondent.
(d) Contents of complaints. Each complaint shall be filed in writing
and shall:
(1) Be signed by the complainant or his or her authorized
representative;
(2) Contain the complainant's name and address (or specify another
means of contacting him or her);
(3) Identify the respondent; and
(4) Describe the complainant's allegations in sufficient detail to
allow the Director or the recipient, as applicable, to determine
whether:
(i) The Directorate or the recipient, as applicable, has
jurisdiction over the complaint;
[[Page 370]]
(ii) The complaint was timely filed; and
(iii) The complaint has apparent merit, i.e., whether the
allegations, if true, would violate any of the nondiscrimination and
equal opportunity provisions of JTPA or this part. The information
required by this paragraph may be provided by completing and submitting
the Directorate's Complaint Information and Privacy Act Consent Forms.
(e) Right to Representation. Each complainant and respondent has the
right to be represented by an attorney or other individual of his or her
own choice.
(f) Election of recipient-level complaint processing. Any person who
elects to file his or her complaint with the recipient shall allow the
recipient 60 days to process the complaint.
(1) If, during the 60-day period, the recipient offers the
complainant a resolution of the complaint but the resolution offered is
not satisfactory to the complainant, the complainant or his or her
representative may file a complaint with the Director within 30 days
after the recipient notifies the complainant of its proposed resolution.
(2) Within 60 days, the recipient shall offer a resolution of the
complaint to the complainant, and shall notify the complainant of his or
her right to file a complaint with the Director, and inform the
complainant that this right must be exercised within 30 days.
(3) If, by the end of 60 days, the recipient has not completed its
processing of the complaint or has failed to notify the complainant of
the resolution, the complainant or his or her representative may, within
30 days of the expiration of the 60-day period, file a complaint with
the Director.
(4) The Director may extend the 30-day time limit if the complainant
is not notified as provided in paragraph (f)(2) of this section, or for
other good cause shown.
(5) Notification of no jurisdiction. The recipient shall notify the
complainant in writing immediately upon determining that it does not
have jurisdiction over a complaint that alleges a violation of the
nondiscrimination and equal opportunity provisions of JTPA or this part.
The notification shall also include the basis for such determination, as
well as a statement of the complainant's right to file a written
complaint with the Director within 30 days of receipt of the
notification.
(g) Complaints filed with the Director.
(1) Notification of acceptance of complaint. The Director shall
determine whether the Directorate will accept a complaint filed pursuant
to this section. Where the Directorate accepts a complaint for
investigation, he or she shall:
(i) Acknowledge acceptance of the complaint for investigation to the
complainant and the respondent, and
(ii) Advise the complainant and respondent of the issues over which
the Directorate has accepted jurisdiction.
(2) Any complainant, respondent, or the authorized representative of
any complainant or respondent, may contact the Directorate for
information regarding the complaint filed pursuant to this section.
(3) Where a complaint contains insufficient information, the
Director shall seek the needed information from the complainant. If the
complainant is unavailable after reasonable means have been used to
locate him or her, or the information is not furnished within 15 days of
the receipt of such request, the complaint file may be closed without
prejudice upon notice sent to the complainant's last known address.
(4) The Director may issue a subpoena, as authorized by Section
163(c) of JTPA, directing the person named therein to appear and give
testimony and/or produce documentary evidence, before a designated
representative, relating to the complaint being investigated. Such
attendance of witnesses, and the production of such documentary
evidence, may be required from any place in the United States, at any
designated time and place.
(5) Where the Directorate lacks jurisdiction over a complaint, he or
she shall:
(i) So advise the complainant, indicating why the complaint falls
outside the coverage of the nondiscrimination and equal opportunity
provisions of JTPA or this part; and
(ii) Where possible, refer the complaint to an appropriate Federal,
State or local authority.
[[Page 371]]
(6) Where a complaint lacks apparent merit or has not been timely
filed, it need not be investigated. Where a complaint will not be
investigated, the Director shall so inform the complainant and indicate
the basis for that determination.
(7) Where a complaint alleging discrimination based on age falls
within the jurisdiction of the Age Discrimination Act of 1975, as
amended, the Director shall refer the complaint in accordance with the
provisions of 45 CFR 90.43(c)(3), and shall so advise the complainant
and the respondent.
(8) Where a complaint solely alleges a charge of individual
employment discrimination covered by the nondiscrimination and equal
opportunity provisions of JTPA or this part and by title VII of the
Civil Rights Act of 1964, as amended (42 U.S.C. 2000e to 2000e-17), the
Equal Pay Act of 1963, as amended (29 U.S.C. 206(d)), or the Age
Discrimination in Employment Act of 1976, as amended (29 U.S.C. 621, et
seq.), the Director shall refer such ``joint complaint'' to the Equal
Employment Opportunity Commission for investigation and conciliation
under procedures for handling joint complaints at 29 CFR part 1691, and
shall advise the complainant and the respondent of the referral.
(9) Determinations. The Director shall determine at the conclusion
of the investigation of a complaint whether there is reasonable cause to
believe that a violation of the nondiscrimination and equal opportunity
provisions of JTPA or this part has occurred.
(i) Upon making such a cause finding, the Director shall issue an
Initial Determination. The Initial Determination shall notify the
complainant and the respondent, in writing, of:
(A) The specific findings of the investigation;
(B) The proposed corrective or remedial action and the time by which
the corrective or remedial action must be completed, as provided in
Sec. 34.44;
(C) Whether it will be necessary for the respondent to enter into a
written agreement, as provided in Sec. 34.45; and
(D) The opportunity to engage in voluntary compliance negotiations.
(ii) Where a no cause determination is made, the complainant and the
respondent shall be so notified in writing. Such determination
represents final agency action of the Department.
Sec. 34.44 Corrective and remedial action.
(a) A Letter of Findings, Notice to Show Cause, or Initial
Determination, issued pursuant to Secs. 34.40, 34.41 or 34.43
respectively, shall include the specific steps the grant applicant or
recipient, as applicable, must take within a stated period of time in
order to achieve voluntary compliance.
(b) Such steps shall include, but are not limited to:
(1) Actions to end and/or redress the violation of the
nondiscrimination and equal opportunity provisions of JTPA or this part;
(2) Make whole relief where discrimination has been identified,
including, as appropriate, back pay (which shall not accrue from a date
more than 2 years prior to the filing of the complaint or the initiation
of a compliance review) or other monetary relief; hire or reinstatement;
retroactive seniority; promotion; benefits or other services
discriminatorily denied; and
(3) Such other remedial or affirmative relief as the Director deems
necessary, including but not limited to outreach, recruitment and
training designed to ensure equal opportunity.
(c) Monetary relief may not be paid from Federal funds.
Sec. 34.45 Notice of violation; written assurances; Conciliation
Agreements.
(a) State Programs. (1) Violations at State-office level. Where the
Director has determined that a violation of the nondiscrimination and
equal opportunity provisions of JTPA or this part has occurred at the
State-office level, he or she shall notify the Governor through the
issuance of a Letter of Findings, Notice to Show Cause or Initial
Determination, as appropriate, pursuant to Secs. 34.40, 34.41 or 34.43
respectively. The Director may secure compliance with the
nondiscrimination and equal opportunity provisions of JTPA and this part
through, among other means, the execution of a written
[[Page 372]]
assurance and/or Conciliation Agreement, pursuant to paragraph (d) of
this section.
(2) Violations below State-office level. Where the Director has
determined that a violation of the nondiscrimination and equal
opportunity provisions of JTPA or this part has occurred below the
State-office level, the Director shall so notify the Governor and the
violating recipient(s) through the issuance of a Letter of Findings,
Notice to Show Cause or Initial Determination, as appropriate, pursuant
to Secs. 34.40, 34.41 or 34.43 respectively.
(i) Such issuance shall: (A) Direct the Governor to initiate
negotiations immediately with the violating recipient(s) to secure
compliance by voluntary means;
(B) Direct the Governor to complete such negotiations within 30 days
of the Governor's receipt of the Notice to Show Cause or within 45 days
of the Governor's receipt of the Letter of Findings or Initial
Determination, as applicable. The Director reserves the right to enter
into negotiations with the recipient at any time during the period. For
good cause shown, the Director may approve an extension of time to
secure voluntary compliance. The total time allotted to secure voluntary
compliance shall not exceed 60 days.
(C) Include a determination as to whether compliance should be
achieved by: Immediate correction of the violation(s) and written
assurance that such violations have been corrected, pursuant to
paragraph (d)(1) of this section; entering into a written Conciliation
Agreement pursuant to paragraph (d)(2) of this section; or both.
(ii) If the Governor determines, at any time during the period
described in paragraph (a)(2)(i)(B), that a recipient's compliance
cannot be achieved by voluntary means, the Governor shall so notify the
Director.
(iii) If the Governor is able to secure voluntary compliance
pursuant to paragraph (a)(2)(i) of this section, he or she shall submit
to the Director for approval, as applicable: written assurance that the
required action has been taken, as described in paragraph (d)(1) of this
section; and/or a copy of the Conciliation Agreement, as described in
paragraph (d)(2) of this section.
(iv) The Director may disapprove any written assurance or
Conciliation Agreement submitted for approval pursuant to paragraph
(a)(2)(iii) of this section that fails to satisfy each of the applicable
requirements provided in paragraph (d) of this section.
(b) National Programs. Where the Director has determined that a
violation of the nondiscrimination and equal opportunity provisions of
JTPA or this part has occurred in a National Program, he or she shall
notify the National Program recipient by issuing a Letter of Findings,
Notice to Show Cause or Initial Determination, as appropriate, pursuant
to Secs. 34.40, 34.41 or 34.43 respectively. The Director may secure
compliance with the nondiscrimination and equal opportunity provisions
of JTPA and this part through, among other means, the execution of a
written assurance and/or Conciliation Agreement pursuant to paragraph
(d) of this section, as applicable.
(c) Written assurance; Conciliation Agreement. (1) Written
assurance. A written assurance developed pursuant to this section must
provide documentation that the violations listed in the Letter of
Findings, Notice to Show Cause or Initial Determination, as applicable,
have been corrected.
(2) Conciliation Agreement. A Conciliation Agreement developed
pursuant to this section must:
(i) Be in writing;
(ii) Address each cited violation;
(iii) Specify the corrective or remedial action to be taken within a
stated period of time to come into compliance;
(iv) Provide for periodic reporting, as determined by the Director,
on the status of the corrective and remedial action;
(v) Provide that the violation(s) will not recur; and
(vi) Provide for enforcement for a breach of the agreement.
Sec. 34.46 Final Determination.
(a) The Director shall conclude that compliance cannot be secured
through informal means when:
[[Page 373]]
(1) The grant applicant or recipient fails or refuses to correct the
violation(s) within the applicable time period established by the Letter
of Findings, Notice to Show Cause or Initial Determination; or
(2) The Director has not approved an extension of time in which to
secure voluntary compliance, pursuant to Sec. 34.45(a)(2)(i)(B), and:
(i) Has not received notification pursuant to Sec. 34.45(a)(2)(iii)
that voluntary compliance has been achieved; or
(ii) Has disapproved a written assurance or Conciliation Agreement,
pursuant to Sec. 34.45(a)(2)(iv); or
(iii) Has received notice from the Governor, pursuant to
Sec. 34.44(a)(2)(ii), that voluntary compliance cannot be achieved.
(b) Upon so concluding, the Director may:
(1) Issue a Final Determination which shall:
(i) Specify the efforts made to achieve voluntary compliance and
indicate that those efforts have been unsuccessful;
(ii) Identify those matters upon which the Directorate and the grant
applicant or recipient continue to disagree;
(iii) List any modifications to the findings of fact or conclusions
set forth in the Initial Determination, Notice to Show Cause or Letter
of Findings;
(iv) Determine the liability of the grant applicant or recipient, as
applicable, and establish the extent of the liability, as appropriate;
(v) Describe the corrective or remedial action that must be taken
for the grant applicant or recipient to come into compliance;
(vi) Indicate that the failure of the grant applicant or recipient
to come into compliance within 10 days of the receipt of the Final
Determination may result, after opportunity for a hearing, in the
termination or denial of the grant, or discontinuation of assistance, as
appropriate, or in referral to the Department of Justice with a request
to file suit;
(vii) Advise the grant applicant or recipient of the right to
request a hearing, and reference the applicable procedures at
Sec. 34.51; and
(viii) Determine the Governor's liability, if any, in accordance
with the provisions of Sec. 34.32; or
(2) Refer the matter to the Attorney General with a recommendation
that an appropriate civil action be instituted; or
(3) Take such other action as may be provided by law.
Sec. 34.47 Notice of finding of noncompliance.
Where a compliance review or complaint investigation results in a
finding of noncompliance, the Director shall so notify: (a) the
Departmental granting agency; and (b) the Assistant Attorney General.
Sec. 34.48 Notification of Breach of Conciliation Agreement.
(a) Where a Governor is a party to a Conciliation Agreement, the
Governor shall immediately notify the Director of a recipient's breach
of any such Conciliation Agreement.
(b) When it becomes known to the Director, through the Governor or
by other means, that a Conciliation Agreement has been breached, the
Director may issue a Notification of Breach of Conciliation Agreement.
(c) A Notification of Breach of Conciliation Agreement issued
pursuant to this section shall be directed, as applicable, to the
Governor and/or other party(ies) to the Conciliation Agreement.
(d) A Notification of Breach of Conciliation Agreement issued
pursuant to paragraph (a) of this section shall:
(1) Specify the efforts made to achieve voluntary compliance and
indicate that those efforts have been unsuccessful;
(2) Identify the specific provisions of the Conciliation Agreement
violated;
(3) Determine liability for the violation and the extent of the
liability, as appropriate;
(4) Indicate that failure of the violating party to come into
compliance within 10 days of the receipt of the Notification of Breach
of Conciliation Agreement may result, after opportunity for a hearing,
in the termination or denial of the grant, or discontinuation of
assistance, as appropriate, or in referral to the Department
[[Page 374]]
of Justice with a request from the Department to file suit;
(5) Advise the violating party of the right to request a hearing,
and reference the applicable procedures at Sec. 34.51(b); and
(6) Include a determination as to the Governor's liability, if any,
in accordance with the provisions of Sec. 34.32.
(e) Where enforcement action pursuant to a Notification of Breach of
Conciliation Agreement is commenced, the Director shall so notify: the
Departmental granting agency; and the Governor, recipient or grant
applicant, as applicable.
Subpart E--Federal Procedures For Effecting Compliance
Sec. 34.50 General.
(a) Sanctions; judicial enforcement. If, following issuance of a
Final Determination pursuant to Sec. 34.46, or a Notification of Breach
of Conciliation Agreement pursuant to Sec. 34.48, compliance has not
been achieved, the Secretary may:
(1) After opportunity for a hearing, suspend, terminate, deny or
discontinue the Federal financial assistance under JTPA, in whole or in
part;
(2) Refer the matter to the Attorney General with a recommendation
that an appropriate civil action be instituted; or
(3) Take such action as may be provided by law.
(b) Deferral of new grants. When termination proceedings under
Sec. 34.51 have been initiated, the Department may defer action on
applications for new financial assistance under JTPA until a Final
Decision under Sec. 34.52 has been rendered. Deferral is not appropriate
when financial assistance under JTPA is due and payable under a
previously approved application.
(1) New Federal financial assistance under JTPA includes all
assistance for which an application or approval, including renewal or
continuation of existing activities, or authorization of new activities,
is required during the deferral period.
(2) New Federal financial assistance under JTPA does not include
assistance approved prior to the beginning of termination proceedings or
increases in funding as a result of changed computations of formula
awards.
Sec. 34.51 Hearings.
(a) Notice of opportunity for hearing. As part of a Final
Determination, or a Notification of Breach of a Conciliation Agreement,
the Director shall include, and serve on the grant applicant or
recipient (by certified mail, return receipt requested), a notice of
opportunity for hearing.
(b) Complaint; request for hearing; answer.
(1) In the case of noncompliance which cannot be voluntarily
resolved, the Final Determination or Notification of Breach of
Conciliation Agreement shall be deemed the Department's formal
complaint.
(2) To request a hearing, the grant applicant or recipient must file
a written answer to the Final Determination or Notification of Breach of
Conciliation Agreement, and a copy of the Final Determination or
Notification of Breach of Conciliation Agreement, with the Office of the
Administrative Law Judges.
(i) The answer must be filed within 30 days of the date of receipt
of the Final Determination or Notification of Breach of Conciliation
Agreement.
(ii) A request for hearing must be set forth in a separate paragraph
of the answer.
(iii) The answer shall specifically admit or deny each finding of
fact in the Final Determination or Notification of Breach of
Conciliation Agreement. Where the grant applicant or recipient does not
have knowledge or information sufficient to form a belief, the answer
may so state and the statement shall have the effect of a denial.
Findings of fact not denied shall be deemed admitted. The answer shall
separately state and identify matters alleged as affirmative defenses
and shall also set forth the matters of fact and law relied on by the
grant applicant or recipient.
(3) The grant applicant or recipient must simultaneously serve a
copy of its filing on the Office of the Solicitor, Civil Rights
Division, Room N-2464, U.S. Department of Labor, 200 Constitution Avenue
NW., Washington DC 20210.
[[Page 375]]
(4)(i) The failure of a grant applicant or recipient to request a
hearing under this paragraph, or to appear at a hearing for which a date
has been set, is deemed to be a waiver of the right to a hearing; and
(ii) Whenever a hearing is waived, all allegations of fact contained
in the Final Determination or Notification of Breach of Conciliation
Agreement shall be deemed admitted and the Final Determination or
Notification of Breach of Conciliation Agreement shall be deemed the
Final Decision of the Secretary as of the day following the last date by
which the grant applicant or recipient was required to request a hearing
or was to appear at a hearing. See Sec. 34.52(b)(3).
(c) Time and place of hearing. Hearings shall be held at a time and
place ordered by the Administrative Law Judge upon reasonable notice to
all parties and, as appropriate, the complainant. In selecting a place
for the hearing, due regard shall be given to the convenience of the
parties, their counsel, if any, and witnesses.
(d) Judicial process; evidence.
(1) The Administrative Law Judge may use judicial process to secure
the attendance of witnesses and the production of documents pursuant to
Section 9 of the Federal Trade Commission Act (15 U.S.C. 49).
(2) Evidence. In any hearing or administrative review conducted
pursuant to this part, evidentiary matters shall be governed by the
standards and principles set forth in the Uniform Rules of Evidence
issued by the Department of Labor's Office of Administrative Law Judges,
29 CFR part 18.
Sec. 34.52 Decision and post-termination proceedings.
(a) Initial Decision. After the hearing, the Administrative Law
Judge shall issue an initial decision and order, containing findings and
conclusions. The initial decision and order shall be served on all
parties by certified mail, return receipt requested.
(b) Exceptions; Final Decision. (1) Final decision after a hearing.
The initial decision and order shall become the Final Decision and Order
of the Secretary unless exceptions are filed by a party or, in the
absence of exceptions, the Secretary serves notice that the Secretary
shall review the decision.
(i) A party dissatisfied with the initial decision and order may,
within 45 days of receipt, file with the Secretary and serve on the
other parties to the proceedings and on the Administrative Law Judge,
exceptions to the initial decision and order or any part thereof.
(ii) Upon receipt of exceptions, the Administrative Law Judge shall
index and forward the record and the initial decision and order to the
Secretary within three days of such receipt.
(iii) A party filing exceptions must specifically identify the
finding or conclusion to which exception is taken. Any exception not
specifically urged shall be deemed to have been waived.
(iv) Within 45 days of the date of filing such exceptions, a reply,
which shall be limited to the scope of the exceptions, may be filed and
served by any other party to the proceeding.
(v) Requests for extensions for the filing of exceptions or replies
thereto must be received by the Secretary no later than 3 days before
the exceptions or replies are due.
(vi) If no exceptions are filed, the Secretary may, within 30 days
of the expiration of the time for filing exceptions, on his or her own
motion serve notice on the parties that the Secretary will review the
decision.
(vii) Final Decision and Order. (A) Where exceptions have been
filed, the initial decision and order of the Administrative Law Judge
shall become the Final Decision and Order of the Secretary unless the
Secretary, within 30 days of the expiration of the time for filing
exceptions and any replies thereto, has notified the parties that the
case is accepted for review. (B) Where exceptions have not been filed,
the initial decision and order of the Administrative Law Judge shall
become the Final Decision and Order of the Secretary unless the
Secretary has served notice on the parties that the Secretary will
review the decision, as provided in paragraph (b)(1)(vi) of this
section.
(viii) Any case reviewed by the Secretary pursuant to this paragraph
shall be decided within 180 days of the notification of such review. If
the Secretary fails to issue a Final Decision and
[[Page 376]]
Order within the 180-day period, the initial decision and order of the
Administrative Law Judge shall become the Final Decision and Order of
the Secretary.
(2) Final Decision where a hearing is waived.
(i) If, after issuance of a Final Determination pursuant to
Sec. 34.46(a) or Notification of Breach of Conciliation Agreement
pursuant to Sec. 34.48, voluntary compliance has not been achieved
within the time set by this part and the opportunity for a hearing has
been waived as provided for in Sec. 34.51(b)(3), the Final Determination
or Notification of Breach of Conciliation Agreement shall be deemed the
Final Decision of the Secretary.
(ii) When a Final Determination or Notification of Breach of
Conciliation Agreement is deemed the Final Decision of the Secretary,
the Secretary may, within 45 days, issue an order terminating or denying
the grant or continuation of assistance or imposing other appropriate
sanctions for the grant applicant or recipient's failure to comply with
the required corrective and/or remedial actions, or referring the matter
to the Attorney General for further enforcement action.
(3) Final agency action. A Final Decision and Order issued pursuant
to Sec. 34.52(b) constitutes final agency action.
(c) Post-termination proceedings. (1) A grant applicant or recipient
adversely affected by a Final Decision and Order issued pursuant to
paragraph (b) of this section shall be restored, where appropriate, to
full eligibility to receive Federal financial assistance under JTPA if
it satisfies the terms and conditions of such Final Decision and Order
and brings itself into compliance with the nondiscrimination and equal
opportunity provisions of JTPA and this part.
(2) A grant applicant or recipient adversely affected by a Final
Decision and Order issued pursuant to paragraph (b) of this section may
at any time petition the Director to restore its eligibility to receive
Federal financial assistance under JTPA. A copy of the petition shall be
served on the parties to the original proceeding which led to the Final
Decision and Order issued pursuant to paragraph (b) of this section.
Such petition shall be supported by information showing the actions
taken by the grant applicant or recipient to comply with the
requirements of paragraph (c)(1) of this section. The grant applicant or
recipient shall have the burden of demonstrating that it has satisfied
the requirements of paragraph (c)(1) of this section. Restoration to
eligibility may be conditioned upon the grant applicant or recipient
entering into a consent decree. While proceedings under this section are
pending, sanctions imposed by the Final Decision and Order under
paragraphs (b) (1) and (2) of this section shall remain in effect.
(3) The Director shall issue a written decision on the petition for
restoration.
(i) If the Director determines that the requirements of paragraph
(c)(1) of this section have not been satisfied, he or she shall issue a
decision denying the petition.
(ii) Within 30 days of its receipt of the Director's decision, the
recipient or grant applicant may file a petition for review of the
decision by the Secretary, setting forth the grounds for its objection
to the Director's decision.
(iii) The petition shall be served on the Director and on the Office
of the Solicitor, Civil Rights Division.
(iv) The Director may file a response to the petition within 14
days.
(v) The Secretary shall issue the final agency decision denying or
granting the recipient's or grant applicant's request for restoration to
eligibility.
Sec. 34.53 Suspension, termination, denial or discontinuance of Federal
financial assistance under JTPA; alternate funds disbursal
procedure.
(a) Any action to suspend, terminate, deny or discontinue Federal
financial assistance under JTPA shall be limited to the particular
political entity, or part thereof or other recipient (or grant
applicant) as to which the finding has been made and shall be limited in
its effect to the particular program, or part thereof, in which the
noncompliance has been found. No order suspending, terminating, denying
or
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discontinuing Federal financial assistance under JTPA shall become
effective until:
(1) The Director has issued a Final Determination pursuant to
Sec. 34.46 or Notification of Breach of Conciliation Agreement pursuant
to Sec. 34.48;
(2) There has been an express finding on the record, after
opportunity for a hearing, of failure by the grant applicant or
recipient to comply with a requirement imposed by or pursuant to the
nondiscrimination and equal opportunity provisions of JTPA or this part;
(3) A Final Decision has been issued by the Secretary, the
Administrative Law Judge's decision and order has become the Final
Decision of the Secretary, or the Final Determination or Notification of
Conciliation Agreement has been deemed the Final Decision of the
Secretary, pursuant to Sec. 34.52(b); and
(4) The expiration of 30 days after the Secretary has filed, with
the committees of Congress having legislative jurisdiction over the
program involved, a full written report of the circumstances and grounds
for such action.
(b) When the Department withholds funds from a recipient or grant
applicant under these regulations, the Secretary may disburse the
withheld funds directly to an alternate recipient. In such case, the
Secretary will require any alternate recipient to demonstrate:
(1) The ability to comply with these regulations; and
(2) The ability to achieve the goals of the nondiscrimination and
equal opportunity provisions of JTPA.
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