Welcome to Feldesman's Grants Practice Shorts series where we discuss helpful tips and strategies in common areas of federal grant management. Be sure to check out our other installments on our Grants Practice Shorts page.
Federal grantees encounter Title VI of the Civil Rights Act of 1964 (herein "Title VI") directly and indirectly in various ways through the terms and conditions of their federal awards, with implementation differing considerably agency to agency.
Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d (emphasis added).
Title VI and Grants – Implementation
Executive Order 12250 tasks the Department of Justice with coordinating agency implementation of Title VI and has issued regulations for this purpose. See Executive Order 12550, Leadership and Coordination of Nondiscrimination Laws, § 1-2 (Nov. 2, 1980) and 28 C.F.R. Part 42, Subpart F.
Routine oversight and enforcement, however, is under the purview of individual federal funding agencies. See 42 U.S.C. § 2000d-1. In this vein, major grant-making agencies have promulgated regulations implementing the non-discrimination requirements of Title VI. See, e.g., 45 C.F.R. Part 80 (HHS grants), 34 C.F.R. Part 100 (Department of Education grants), and 29 C.F.R. Part 31 (DOL grants).
As implemented by HHS, the Department of Education, and DOL, regulations describe prohibited conduct in the same manner, as follows:
"A recipient under any program to which this part applies may not, directly or through contractual or other arrangements, on ground of race, color, or national origin:
- Deny an individual any service, financial aid, or other benefit provided under the program;
- Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;
- Subject an individual to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;
- Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program;
- Treat an individual differently from others in determining whether he satisfies any admission, enrollment, quota, eligibility, membership or other requirement or condition which individuals must meet in order to be provided any service, financial aid, or other benefit provided under the program;
- Deny an individual an opportunity to participate in the program through the provision of services or otherwise or afford him an opportunity to do so which is different from that afforded others under the program (including the opportunity to participate in the program as an employee but only to the extent set forth in paragraph (c) of this section)[; or]
- Deny a person the opportunity to participate as a member of a planning or advisory body which is an integral part of the program."
45 C.F.R. § 80.3(b); 34 C.F.R. § 100.3(b); 29 C.F.R. § 31.3(b).
Title VI and Grants – Scope
Title VI requirements generally have broad reach, as implementing agency regulations generally define "program or activity receiving Federal financial assistance" to include the entirety of the operations of the entity receiving the assistance, not just the entity's federally funded activities. 29 U.S.C. § 2000d-4a. Obligations also generally extend to activities carried out in a facility that was acquired or improved with federal funds. See 45 C.F.R. § 80.4(a); 34 C.F.R. § 100.4(a); 29 C.F.R. § 31.6(a).
Title VI and Grants – Employment Practices
Title VI does not generally regulate employment practices, except when the primary purpose of a financial assistance program is to provide employment. See 45 C.F.R. § 80.3(c); 34 C.F.R. § 100.3(c); 29 C.F.R. § 31.3(c). Rather, alleged discrimination on the basis of race, color, or national origin in employment practices is governed by Title VII of the Civil Rights Act and enforcement falls under the purview of the federal Equal Employment Opportunity Commission ("EEOC"). See Department of Justice, Title VI Legal Manual, § IV, Interplay of Title VI with Title IX, Section 504, the Fourteenth Amendment, and Title VII (2016), available at https://www.justice.gov/crt/fcs/T6manual (last visited Dec. 16, 2024); see also EEOC, "How to File a Charge of Employment Discrimination" webpage at https://www.eeoc.gov/eeoc/enforcement_litigation.cfm (last visited Dec. 16, 2024).
Title VI and Grants – Complaints
Agency regulations implementing Title VI call for each grantee to:
- Make information about the recipient's obligations under the Act available to beneficiaries of the program (including through use of a poster or similar means for DOL grantees);
- Track and retain data that will enable the grantee to provide compliance reports to its funding agency, and
- Provide to the funding agency broad access to the grantee's records and facilities to verify compliance. 45 C.F.R. § 80.6; 34 C.F.R. § 100.6; 29 C.F.R. § 31.5.
Individuals may file written complaints with a grantee's funding agency asserting discriminatory conduct on the basis of race, color, or national origin. If a violation is found, the agency will seek to resolve the matter through "informal means." 42 U.S.C. § 2000d-1 (requiring that compliance first be sought by "voluntary" means); 45 C.F.R. § 80.7(d)(1); 34 C.F.R. § 100.7(d)(1); 29 C.F.R. § 31.7(d)(1).
There are other nondiscrimination statutes and regulations incorporated in the terms and conditions of federal grants. We will review other nondiscrimination requirements in grants in future installments of this series.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
