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- Disability Nondiscrimination Law Advisor

Section 188 of the Workforce Innovation and Opportunity Act (WIOA)

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Summary

The Workforce Innovation and Opportunity Act (WIOA) provides Federal financial assistance to states and local areas to offer a range of job training, education, and other human resource programs through "One-Stop" Career Centers. Section 188 of WIOA prohibits covered employers, agencies, businesses and organizations ("covered entities") from discriminating on various bases, including disability. It also requires covered entities to take positive actions to assist qualified individuals with disabilities. These requirements apply to any program or activity that receives financial assistance under WIOA Title I.

Who is Affected by Section 188

Covered Entities: Section 188 covers all employers, agencies, businesses, and organizations that:

  • Receive financial assistance under Title I of WIOA, or
  • Are One-Stop partners listed in Section 121(b) of WIOA, and
    operate one or more programs or activities that are part of the One-Stop system.

If your business, agency, or organization falls under the second category of covered entities (a One-Stop partner that operates one or more programs or activities as part of the One-Stop system), then only the programs or activities that are part of the One-Stop system are covered by the requirements of Section 188. See 29 CFR 38.2(a)(2).

Protected Individuals: Section 188 protects qualified individuals with disabilities who are:

  • Employees of, or applicants for employment with:
    • An agency, business or organization for a position in the administration of, or in connection with, any program or activity receiving financial assistance through WIOA Title I;
    • A One-Stop partner for a position in the administration of, or in connection with, a program or activity that is part of the One-Stop system; and
  • Applicants to or participants in any program or activity receiving financial assistance through WIOA Title I that is operated by:

See 29 CFR 38.5, 29 CFR 38.7, and 29 CFR 38.10.

Covered Entities' Responsibilities Under Section 188 - Employment Practices

Section 188 and its implementing regulations include specific requirements for covered entities with regard to employment practices. Listed below are the key disability-related responsibilities. For a complete list, see the regulations implementing Section 188 at 29 CFR Part 38 .

  • Nondiscrimination. Covered entities must implement and follow nondiscriminatory employment practices related to the administration of, or in connection with, any program or activity that receives financial assistance under WIOA Title I. This means that covered entities may not discriminate against qualified individuals with disabilities in any of their employment and/or personnel practices (including recruitment, job application procedures, hiring, compensation, promotion and career advancement, demotion or termination, job assignments, training, leaves of absence, fringe benefits, and all other terms, conditions and privileges of employment) that relate to or are connected with the administration of a WIOA Title I financially assisted program. See 29 CFR 38.3(b) (incorporating by reference the regulations implementing Section 504 of the Rehabilitation Act); 29 CFR 38.7(d), (e), (f)(1)(iii), (f)(2)(ii), (g), (h), (k), (n), and (o); 29 CFR 38.10; and 29 CFR 32.12 (general non-discrimination provision).
  • Reasonable Accommodations. Covered entities must provide reasonable accommodations that enable qualified job applicants and employees with disabilities to participate in the application process, to perform essential job functions, and receive benefits and privileges equal to those of job applicants and employees without disabilities. Covered entities are not required to provide any accommodation that would impose an undue hardship on the operation of their organization. See 29 CFR 38.8. Under WIOA, a covered entity must go through a formal process to determine whether a particular requested accommodation would cause undue hardship. Please note that this requirement differs from other disability nondiscrimination laws, such as Title I of the ADA, where the process for determining whether a reasonable accommodation would result in undue hardship is left to the discretion of the employer.
  • Auxiliary Aids or Services. Covered entities must ensure that all communications with individuals with disabilities are as effective as communications with others. This means that covered entities must supply appropriate auxiliary aids or services where necessary to give individuals with disabilities an equal opportunity to apply for or perform a job. In deciding what type of auxiliary aid or service is appropriate and necessary, covered entities must give primary consideration to the requests of the individual with a disability. Covered entities are not required to take any action that would result in a fundamental alteration in the nature of a service, program, or activity. See 29 CFR 38.9.
  • Medical Examinations and Pre-Employment Inquiries. Covered entities must ensure that all medical examinations and pre-employment medical inquiries are limited to those allowed under the law. Before extending a job offer, covered entities generally may not require pre-employment medical examinations or make disability-related inquiries (questions that are likely to reveal whether an applicant is an individual with a disability or about the nature or severity of a disability). Covered entities may, however, make pre-offer inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform the essential functions of the job.

    Covered entities may also require a medical examination or make a disability-related inquiry after making an offer of employment but before the applicant begins his or her duties, and may condition the employment offer on the results of such an examination or inquiry, if all employees entering into the same job category are subjected to such an examination or inquiry, regardless of disability. If a job offer is withdrawn because of a disability, the selection criteria used must be job-related and consistent with business necessity. In addition, the covered entity may require a medical examination or make an inquiry of a current employee if the examination or inquiry is job-related and consistent with business necessity. See 29 CFR 38.3(b) (incorporating by reference the regulations implementing Section 504 of the Rehabilitation Act) and 29 CFR 32.15. However, before making any inquiries/asking any questions that may elicit medical information or information related to a disability, covered entities must clearly inform the individual from/about whom the information is being sought that providing the information is voluntary; the information will be kept confidential as provided by law; refusal to provide the information will not subject the individual to any adverse treatment, and the information will be used only in accordance with the law. See 29 CFR 38.3(b) and 29 CFR 32.15(b).

    In addition, any medical and disability-related information about a particular individual must be kept strictly confidential and stored separately and securely from other personnel information.
  • Assurances. Covered entities must include a specific assurance in each of their applications for WIOA Title I financial assistance and in each grant, cooperative agreement, contract or other arrangement whereby WIOA Title I financial assistance is made available. This statement assures that the employer will comply fully with the nondiscrimination and equal employment opportunity provisions in Section 188; Title VI of the Civil Rights Act of 1964; Section 504 of the Rehabilitation Act of 1973, as amended; the Age Discrimination Act of 1975; and Title IX of the Education Amendments of 1972. The required language for this assurance can be found at 29 CFR 38.20.
  • Notice/Posters. Covered entities must provide the verbatim text of a particular notice, known as the "Equal Opportunity is the Law" notice, to members of specified groups and entities. The regulations provide the required text for this notice and specify certain minimum methods for publication and/or distribution of the notice. Covered entities must communicate the notice in equally effective ways to persons with disabilities. As part of this obligation, covered employers must provide the notice in appropriate formats to persons with visual impairments. If a covered entity provides the notice in an alternative format to an employee or applicant for employment who has a visual impairment, that fact must be recorded in the employee's/applicant's medical file. See 29 CFR 38.29 through 38.33.
  • Orientations. During each orientation session for new employees, covered entities must include a discussion of the rights that WIOA Section 188 and its implementing regulations provide, including the right to file a complaint either with the person designated by the covered employer, or with the Director of DOL's Civil Rights Center (CRC). See 29 CFR 38.36.
  • Equal Opportunity Officer. Covered entities must designate an Equal Opportunity (EO) Officer to monitor compliance with Section 188 and its implementing regulations. See 29 CFR 38.20 through 38.28.
  • Recordkeeping. Covered entities must ask applicants for employment and employees to supply four pieces of demographic data, including race/ethnicity, gender, age and, where known, disability status. Though covered entities are required to ask for this information, the individuals being asked are not required to supply it; in other words, asking the questions is mandatory, answering them is optional. Remember that before asking any questions that may lead to disclosure of information about disability, you must provide the required information discussed in the "Medical Examinations and Pre-Employment Inquiries" section above.

    In addition, covered entities must keep all records pertaining to applicants for employment and employees for at least three years from the close of the applicable program year. Records regarding complaints and actions taken on the complaints must be kept for at least three years from the date the complaint was resolved. See 29 CFR 38.38 through 38.41.
  • Listing of Employment Openings. Covered entities should request State employment security agencies to refer qualified individuals with disabilities for consideration for employment. See 29 CFR 38.3(b) (incorporating by reference regulations implementing Section 504 of the Rehabilitation Act) and 29 CFR 32.16 (regarding listing of job openings).
  • Job Qualifications/Selection Criteria. Covered entities must develop and follow schedules for regularly reviewing job qualifications, tests, and other criteria used to select employees for employment, training, and other changes in employment status, such as promotion, demotion or training. These reviews must be conducted to ensure that the criteria are not inappropriately screening out qualified individuals with disabilities (either individually or collectively) solely because of those disabilities. Selection criteria that disproportionately exclude individuals with disabilities are allowed in the employment context only if they can be proven to be job-related and consistent with business necessity. See 29 CFR 38.3(b) (incorporating by reference regulations implementing Section 504 of the Rehabilitation Act) and 29 CFR 32.14 (regarding duty to review periodically selection criteria).
  • Complaint Procedures. Covered entities must adopt and publish procedures for processing complaints alleging discrimination against employees and applicants for employment. These procedures must include the specific elements listed in 29 CFR 38.76, including ways of resolving complaints through alternative dispute resolution (ADR). Note that covered service providers must follow the complaint procedures developed and published by their state or local Workforce Investment Area.
  • Complaint Logs. A covered entity must keep a log all of complaints filed that allege discrimination on any of the bases prohibited by WIOA Section 188, including disability. These logs must adhere to the requirements of 29 CFR 38.38(c).
  • Compliance Reviews. Covered entities are subject to periodic compliance reviews by DOL. The Director of DOL's CRC has the right to review any application or class of applications for financial assistance under WIOA Title I, before approval of the application(s), to determine whether the grant applicant(s) might not comply with the WIOA nondiscrimination requirements. Such a review is known as a pre-approval compliance review. The CRC Director also has the right to initiate and conduct a post-approval compliance review of a covered entity. The latter reviews may be conducted via such techniques as desk audits and on-site reviews. The WIOA nondiscrimination regulations set forth the procedures to be followed during and after such reviews. See 29 CFR 38.60 through 38.64.
  • Accessibility. Covered entities must ensure that their facilities are constructed and altered in such a manner that the facilities or parts thereof are readily accessible to and usable by qualified individuals with disabilities if the construction or alteration began after the receipt of WIOA Title I financial assistance. See 29 CFR 38.3(b) (incorporating by reference the regulations implementing Section 504 of the Rehabilitation Act), 29 CFR 32.28 and the Resources section below for additional information regarding architectural accessibility.
  • Retaliation, Intimidation, and Interference. Covered entities must take all necessary actions to ensure that no one intimidates or discriminates against any individual for taking certain actions, such as filing a complaint, opposing an unlawful action, or participating in an investigation or other proceeding under Section 188 of WIOA. See 29 CFR 38.11.

Covered Entities' Responsibilities Under Section 188 - Provision of Aid, Benefits, Services, and Training

Section 188 and its implementing regulations include specific requirements for covered entities, but only in connection with the program(s) or activity(ies) that is financed in whole or in part under WIOA Title I. These requirements are in addition to the above ones that relate to these covered entities as employers.

  • Nondiscrimination. Covered entities must implement and follow nondiscriminatory practices with respect to the provision of aid, benefits, services, and training (including the application process for any of these) under a WIOA Title I financially assisted program or activity. See 29 CFR 38.3(b) (incorporating by reference the regulations implementing Section 504 of the Rehabilitation Act), 29 CFR 38.7, and 29 CFR 32.4 (general non-discrimination provision).
  • Reasonable Accommodations/Modifications/Auxiliary Aids or Services. Covered entities must provide reasonable accommodations to the known physical or mental limitations of a protected individual. Covered entities must provide such accommodations unless doing so would cause undue hardship. See 29 CFR 38.8

    In addition, covered entities must make reasonable modifications in policies, practices, and procedures when such modifications are necessary to avoid discrimination on the basis of disability, unless making the modifications would fundamentally alter the nature of the service, program, or activity. See 29 CFR 38.8.

    Covered entities must also ensure that all communications with individuals with disabilities are as effective as communications with others. This means that covered entities must supply appropriate auxiliary aids or services where necessary to give people with disabilities an equal opportunity to participate in and benefit from the WIOA Title I financially assisted program or activity. In deciding what type of auxiliary aid or service is appropriate and necessary, covered entities must give primary consideration to the requests of the individual with a disability. Covered entities are not required to take any action that would result in a fundamental alteration in the nature of a service, program, or activity. See 29 CFR 38.9(f).

    A covered entity must go through a formal process to determine whether a particular requested accommodation would cause undue hardship, or a requested modification or auxiliary aid or service would result in a fundamental alteration.
  • Disability-Related Inquiries. Covered entities may make certain disability-related inquiries. In the context of providing general services to job-seeker customers (such as assessing a customer's skills, prior work experience, or employability; creating a service strategy for a customer; or providing supportive services such as child care or transportation), disability-related inquiries are lawful and may be helpful in providing services tailored to the needs of the individual. When making such disability-related inquiries, it would be prudent for a covered entity to explain that providing any information is voluntary, that the information will be kept confidential, that refusal to provide information will in no way affect the services or benefits received and that any information provided will be used only in accordance with the law.

    It is important to note, however, that in the context of selecting applicants for employment-related training or when acting as an employment agency, whether a covered entity may make disability-related inquiries of a customer depends on whether an offer of training or employment has been made to the customer and whether the training or employment has begun. Generally, covered entities may not make disability-related inquiries prior to making an offer of training or employment. Once an offer of training or employment has been made but before the training or employment has started, covered entities may make disability-related inquiries of a customer, provided that all customers applying for the training and/or employment in question are subjected to the same questions regardless of disability. If an offer of training or employment is withdrawn because of a disability, the selection criteria used must be related to the training or employment in question and consistent with business necessity. In addition, covered entities may require a medical examination or make an inquiry of a current trainee or employee if the examination or inquiry is related to the training or employment in question and is consistent with business necessity.

    Before asking any questions that may lead to disclosure of information about disability, covered entities must provide the required information discussed in the "Medical Examinations and Pre-Employment Inquiries" section under "Covered Entities Responsibilities Under Section 188 - Employment Practices" above. In addition, all medical- and disability-related information is subject to confidentiality requirements and must be stored safely and securely.
  • Assurances. Covered entities must include a specific assurance statement in each of their applications for WIOA Title I financial assistance and in each grant, cooperative agreement, contract or other arrangement whereby WIOA Title I financial assistance is made available. This statement assures that the employer will comply fully with the nondiscrimination and equal employment opportunity provisions in Section 188; Title VI of the Civil Rights Act of 1964; Section 504 of the Rehabilitation Act of 1973, as amended; the Age Discrimination Act of 1975; and Title IX of the Education Amendments of 1972. The required language for this assurance can be found at 29 CFR 38.20.
  • Notice/Posters. Covered entities must provide program participants with notice of their rights to nondiscrimination. Employers may use a particular notice, known as the "Equal Employment Opportunity is the Law" Notice, or may create their own notice as long as all of the requirements identified in the regulations are met. The regulations provide the required text for this notice and specify certain minimum methods for publication and/or distribution of the notice. Covered entities must communicate the contents of the notice in equally effective ways to persons with disabilities. As part of this obligation, covered entities must provide the notice in appropriate formats to persons with visual impairments. If a covered entity provides the notice in an alternative format to a participant who has a visual impairment, that fact must be recorded in the participant's file. See 29 CFR 38.29 through 38.33.
  • Tag Lines and Alternative Contact Numbers. Covered entities must use specific tag lines and alternative contact numbers (for persons with disabilities who do not use voice telephones) on any materials (including brochures, Web sites, or other materials in written or oral form, electronically or on paper) used to communicate descriptions of the programs/activities offered that are funded by WIOA Title I; and the requirements for participation in these programs/activities. See 29 CFR 38.34.
  • Equal Opportunity Officer. Covered entities must designate an Equal Opportunity (EO) Officer to monitor compliance with Section 188 and its implementing regulations. See 29 CFR 38.23 through 38.28.
  • Recordkeeping. Covered entities must maintain certain records. Entities must ask applicants/registrants for services, eligible applicants/registrants, and participants to supply four pieces of demographic data, including race/ethnicity, gender, age and, where known, disability status. Though covered entities are required to ask for this information, the individuals being asked are not required to supply it; in other words, asking the questions is mandatory, answering them is optional. Remember that before asking any questions that may lead to disclosure of information about disability, a covered entity must provide the required information discussed in the "Medical Examinations and Pre-Employment Inquiries" section under "Covered Entities Responsibilities Under Section 188 - Employment Practices" above.

    Any demographic information that a covered entity receives must be:
    • Stored in a way that ensures confidentiality; and
    • Used only for recordkeeping and reporting or other use authorized by law.
    Disability-related demographic information is subject to the confidentiality requirements and to the storage requirements discussed in the "Medical Examinations and Pre-Employment Inquiries" section under "Covered Entities Responsibilities Under Section 188 - Employment Practices" above.

    In addition, covered entities must keep all records pertaining to applicants/registrants for services, eligible applicants/registrants, and participants for at least three years from the close of the applicable program year. Records regarding complaints and actions taken on the complaints must be kept for at least three years from the date the complaint was resolved. See 29 CFR 38.38 through 38.41.
  • Universal Access. Covered entities must take steps to ensure that they are providing universal access to their WIOA Title I financially-assisted programs and activities. Reasonable efforts should be taken to include targeted groups, including individuals with disabilities. Such efforts may include: advertising in newspapers and radio stations that target individuals with disabilities; sending notices about openings in the entities' programs and/or activities to schools or community service groups that serve individuals with disabilities; and consulting with appropriate community service groups about ways to improve outreach and services to individuals with disabilities. See 29 CFR 38.42.
  • Integrated Settings. Covered entities must not provide "different, segregated, or separate aid, benefits, services, or training" to customers with disabilities, or to any group of customers with disabilities (for example, referring such customers to disability-specific programs such as Vocational Rehabilitation, or to separate, "special" training providers), except under certain specific, limited circumstances. Instead, covered entities must administer their programs and activities in the most integrated setting appropriate to the needs of individuals with disabilities. Even where the law permits a covered entity to provide separate programs or activities for people with disabilities, the entity is not permitted to insist that qualified people with disabilities receive aid, benefits, services, or training through these separate programs or activities, or to automatically refer individuals with disabilities to the separate programs or activities. Rather, covered entities must give people with disabilities the option of participating in the same programs or activities that are offered to people without disabilities. See 29 CFR 38.6.
  • Complaint Processing Procedures. Covered entities must adopt and publish procedures for processing discrimination complaints. These procedures must include specific elements listed in 29 CFR 38.76, including ways of resolving complaints through alternative dispute resolution (ADR). Note that covered service providers must follow the complaint procedures developed and published by their state or local Workforce Investment Area.
  • Compliance Reviews. Covered entities are subject to periodic compliance reviews by DOL. The Director of DOL's CRC has the right to review any application or class of applications for financial assistance under WIOA Title I, before approval of the application(s), to determine whether the grant applicant(s) might not comply with the WIOA nondiscrimination requirements. Such a review is known as a pre-approval compliance review. The CRC Director also has the right to initiate and conduct a post-approval compliance review of a covered entity. The latter reviews may be conducted via such techniques as desk audits and on-site reviews. The WIOA nondiscrimination regulations set forth the procedures to be followed during and after such reviews. See 29 CFR 38.60 through 38.64; 29 CFR 38.66 through 38.69; and 29 CFR 38.94 et seq.
  • Architectural Accessibility. Covered entities must ensure that their facilities or portions of their facilities comply with specific Federal architectural accessibility standards if the construction or alteration of the specific facility or part of a facility began after the receipt of WIOA Title I financial assistance. See 29 CFR 38.3(b) (incorporating by reference the regulations implementing Section 504 of the Rehabilitation Act), 29 CFR 32.28, and the Resources section below for additional information regarding architectural accessibility.
  • Program Accessibility. In addition to the architectural accessibility obligations, covered entities must ensure that their WIOA Title I financially assisted programs and activities are readily accessible to qualified individuals with disabilities, when each program and/or activity is viewed in its entirety. Under the program accessibility requirements, a covered entity must set up each of its programs and activities in advance to be accessible to qualified persons with disabilities when looked at as a whole. This requirement is separate and apart from the requirement to provide a specific individual with a reasonable accommodation. The requirement does not mean that every facility or part of a facility that is used to provide a WIOA Title I financially assisted program or activity, and that is not required to comply with Federal architectural accessibility standards, must be accessible to and usable by qualified people with disabilities. However, if a particular program or activity is offered at only one site that is not subject to Federal architectural accessibility standards, that site must be made accessible, or the program or activity must be made available at an alternative, accessible site or sites. In addition, every aspect of a program or activity (such as intake, assessment, or training) must be accessible.

    Under the program accessibility requirements, a covered entity is not obligated to make structural changes to a facility or part of a facility that is not subject to Federal architectural accessibility requirements if other ways of providing access for individuals with disabilities (such as redesigning equipment, moving classes or other services to accessible locations, or assigning aides to work with customers with disabilities) are possible. However, two specific legal requirements apply to such alternative arrangements:
    • Every covered entity must provide programs and activities to people with disabilities in the most integrated setting possible; and
    • A covered entity may be required to alter or renovate its facilities if there is no other possible way of providing program accessibility.
    See 29 CFR 38.3(b) (incorporating by reference the regulations implementing Section 504 of the Rehabilitation Act) and 29 CFR 32.27.
  • Retaliation, Intimidation, and Interference. Covered entities must take all necessary actions to ensure that no one intimidates or discriminates against any individual for taking certain actions, such as filing a complaint, opposing an unlawful action, or participating in an investigation or other proceeding under Section 188 of WIOA. See 29 CFR 38.11.

Section 188 and Other Federal Disability Nondiscrimination Laws

Most employers, agencies, businesses and organizations that are covered by WIOA Section 188 are also covered by one or more other Federal laws prohibiting discrimination against people with disabilities. For example, employers, agencies, businesses and organizations that receive Federal financial assistance under WIOA may be covered by both the Section 188 regulations and Titles I and II of the Americans with Disabilities Act.

The general principles underlying all the Federal disability nondiscrimination laws are consistent. However, the WIOA nondiscrimination regulations impose disability-related obligations that, in a number of cases, are more detailed or specific than those imposed by the regulations implementing other such laws. Complying with the disability-related obligations under Section 188 should not cause you to violate the other Federal disability nondiscrimination laws, and, in many cases, will actually satisfy the other laws' requirements. For example, employers, agencies, businesses and organizations that comply with the Section 188 regulations will also satisfy their obligation to comply with certain subparts of DOL's regulations implementing Section 504 of the Rehabilitation Act. In addition, covered entities that follow the formal process required under Section 188 for addressing accommodation requests will also satisfy the requirements under the Americans with Disabilities Act and Section 504 for addressing accommodation requests.

It is important to note that some state laws also mandate additional disability-related responsibilities for employers, and/or provide additional protections for individuals with disabilities. Employers, agencies, businesses and organizations need to be familiar with all of the disability nondiscrimination requirements that apply to their operations.

Resources

Applicable Law and Regulations

Compliance Assistance Information

Information on architectural accessibility

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