United States: DOL Seeks to Expand the Definition of Illegal Discrimination

We round out our series on recent federal agency action by discussing the U.S. Department of Labor's (DOL) recent Notice of Proposed Rulemaking for the Workforce Innovation and Opportunity Act (WIOA). The Proposed Rules would update existing nondiscrimination and equal opportunity provisions of the WIOA, which is the DOL's primary mechanism for providing job training funding. Thus, the proposed rules would only impact organizations funded by the DOL to provide job training under the WIOA. This is not a small number. There are approximately 34,450 recipients of WIOA funding annually, and those organizations serve approximately 56 million individuals.

Currently, the WIOA "prohibits the exclusion of an individual from participation in, denial of the benefits of, discrimination in, or denial of employment in the administration of or in connection with, any programs and activities funded or otherwise financially assisted in whole or in part under Title I of the WIOA because of race, color, religion, sex, national origin, age, disability, political affiliation or belief, and for beneficiaries only, citizenship status, or participation in a program or activity that receives financial assistance under Title I of WIOA." The Proposed Rules would update the WIOA, as the DOL believes that "the current rule does not reflect recent developments in equal opportunity and nondiscrimination jurisprudence." 

There are a number of significant changes proposed, including the following:

  • The language of the proposed rule itself replaces "he or she" with "the individual," "person," or "other appropriate identifier" wherever possible to avoid the gender binary.
  • The rule revises the definition of "physical or mental impairment" in the definition of disability to include "immune and circulatory illnesses" and "pregnancy-related medical conditions." The rules also make clear that the definition of "mental and psychological disorder" includes "intellectual disability (formally termed 'mental retardation') and specific learning disabilities (including but not limited to dyslexia)."
  • A new section titled "Discrimination prohibited based on sex." Sex, as a prohibited basis for discrimination, will include pregnancy, childbirth and related medical conditions, sex stereotyping, transgender status, and gender identity. The proposed rules provide a nonexhaustive list of distinctions based on sex that are unlawful, such as making a distinction between married and unmarried persons that is not applied equally to individuals of both sexes, adversely treating unmarried parents of one sex, posting job announcements that include gender-specific terms, and denying employees access to the bathrooms used by the gender by which they identify.
  • A new section on national origin discrimination, which would include discrimination based on limited English proficiency (LEP). The proposed rule would also adopt the principle from the Civil Rights Act of 1964 that recipients of federal funding must take "reasonable steps to provide meaningful access" to each LEP individual that it serves. Reasonable steps may include an assessment of an LEP individual to determine language assistance needs, providing oral interpretation and written translation of hard-copy and electronic materials in the appropriate non-English language, and outreach to LEP communities. The proposed regulations also state that language assistance services must be provided free of charge and in a timely manner. Finally, recipient organizations will need to provide individuals with a "Babel Notice," the proposed definition of which is "a short notice included in a document or electronic medium (e.g., Web site, 'app', email) in multiple languages informing the reader that the communication contains vital information, and explaining how to access language services to have the contents of the communication provided in other languages."

The 60 day comment period for these proposed rules ends on March 28.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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