Rule2022-07290
Notification of Interpretation of Section 188 of the Workforce Innovation and Opportunity Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 7, 2022
Effective
April 7, 2022
Issuing agencies
Labor Department
Abstract
This Notification is to inform the public that, consistent with the Supreme Court's 2020 decision in Bostock v. Clayton County and Title IX of the Education Amendments of 1972, the U.S. Department of Labor (DOL), beginning April 7, 2022, will interpret the prohibition on discrimination on the basis of sex that is codified in Section 188 of the Workforce Innovation and Opportunity Act to include discrimination on the basis of sexual orientation. DOL will continue to interpret and enforce Section 188's prohibition on discrimination on the basis of sex to include discrimination on the basis of gender identity and transgender status. This interpretation will guide DOL's Civil Rights Center in processing complaints and conducting investigations and compliance reviews, but does not determine the outcome in any particular case or set of facts.
Full Text
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<title>Federal Register, Volume 87 Issue 67 (Thursday, April 7, 2022)</title>
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[Federal Register Volume 87, Number 67 (Thursday, April 7, 2022)]
[Rules and Regulations]
[Pages 20321-20322]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07290]
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DEPARTMENT OF LABOR
Office of the Secretary
29 CFR Part 38
Notification of Interpretation of Section 188 of the Workforce
Innovation and Opportunity Act
AGENCY: Office of the Secretary, Labor.
ACTION: Notification of interpretation.
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SUMMARY: This Notification is to inform the public that, consistent
with the Supreme Court's 2020 decision in Bostock v. Clayton County and
Title IX of the Education Amendments of 1972, the U.S. Department of
Labor (DOL), beginning April 7, 2022, will interpret the prohibition on
discrimination on the basis of sex that is codified in Section 188 of
the Workforce Innovation and Opportunity Act to include discrimination
on the basis of sexual orientation. DOL will continue to interpret and
enforce Section 188's prohibition on discrimination on the basis of sex
to include discrimination on the basis of gender identity and
transgender status. This interpretation will guide DOL's Civil Rights
Center in processing complaints and conducting investigations and
compliance reviews, but does not determine the outcome in any
particular case or set of facts.
DATES: This notification is effective April 7, 2022.
FOR FURTHER INFORMATION CONTACT: Naomi Barry-Perez, Director, Civil
Rights Center, U.S. Department of Labor, 200 Constitution Ave. NW, Room
N-4123, Washington, DC 20210.
SUPPLEMENTARY INFORMATION: DOL is informing the public that, consistent
with the Supreme Court's decision in Bostock v. Clayton County, 140 S.
Ct. 1731 (2020), and Title IX of the Education Amendments of 1972, 20
U.S.C. 1681 et seq., DOL, beginning April 7, 2022, will interpret the
prohibition on discrimination on the basis of sex in Section 188 of the
Workforce Innovation and Opportunity Act (WIOA), 29 U.S.C. 3248, to
include discrimination on the basis of sexual orientation.\1\ DOL will
continue to interpret and enforce Section 188's prohibition on
discrimination on the basis of sex to include discrimination on the
basis of gender identity and transgender status, as set forth in the
regulations issued under Section 188.29 CFR 38.7.
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\1\ The regulations implementing WIOA Section 188 (29 CFR part
38) use the phrases ``on the basis of . . . sex'' and ``based on
sex.'' The relevant statutory language (at 29 U.S.C. 3248(a)(2))
uses the phrase ``because of . . . sex.'' These phrases are used
interchangeably in this notification.
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The Civil Rights Center (CRC) at DOL is responsible for enforcing
Section 188 of WIOA and regulations issued under Section 188, which
prohibit 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 WIOA on various bases, including sex. 29 U.S.C. 3248(a).
On June 15, 2020, the U.S. Supreme Court held that the prohibition
on employment discrimination based on sex in Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e et seq., encompasses discrimination
based on sexual orientation, gender identity, and transgender status.
The Court concluded that the plain meaning of ``because of
[[Page 20322]]
sex'' in Title VII necessarily includes discrimination because of
sexual orientation, gender identity, and transgender status. Bostock v.
Clayton County, 140 S. Ct. 1731, 1753-54 (2020).
Since Bostock, at least one Federal circuit court of appeal has
concluded that the plain language of Title IX's prohibition on sex
discrimination must be read similarly, and the Supreme Court has denied
review of that decision. Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d
586, 616 (4th Cir. 2020), as amended (Aug. 28, 2020), petition for
cert. denied, No. 20-1163 (June 28, 2021).
On March 26, 2021, the Civil Rights Division of the U.S. Department
of Justice, the agency charged with coordination of the implementation
and enforcement of Title IX by executive agencies, issued a memorandum
concluding that ``the best reading of Title IX's prohibition on
discrimination `on the basis of sex' is that it includes discrimination
on the basis of gender identity and sexual orientation.'' \2\ The Civil
Rights Division reached this conclusion after considering the text of
Title IX, Bostock and other Supreme Court case law, including
dissenting opinions, and developing jurisprudence in this area,
including the circuit court opinion cited above. The Civil Rights
Division subsequently updated its Title IX Legal Manual to state that
the Department of Justice interprets Title IX to prohibit
discrimination based on gender identity and sexual orientation.\3\
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\2\ Memorandum from Principal Deputy Assistant Attorney General
Pamela S. Karlan, Civil Rights Division, U.S. Department of Justice,
to Federal Agency Civil Rights Directors and General Counsels,
Application of Bostock v. Clayton County to Title IX of the
Education Amendments of 1972 (Mar. 26, 2021), available at <a href="https://www.justice.gov/crt/page/file/1383026/download">https://www.justice.gov/crt/page/file/1383026/download</a>.
\3\ Civil Rights Division, U.S. Department of Justice, Title IX
Legal Manual, Title IX Cover Addendum post-Bostock, available at
<a href="https://www.justice.gov/file/1423496/download">https://www.justice.gov/file/1423496/download</a>.
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In addition, on June 22, 2021, the Office for Civil Rights of the
U.S. Department of Education, the agency responsible for that
Department's enforcement of Title IX, published a notice in the Federal
Register clarifying that it will enforce Title IX's prohibition on
discrimination based on sex to include discrimination based on both
sexual orientation and gender identity.\4\ The Office for Civil Rights
concluded that the Supreme Court's interpretation of sex discrimination
in Bostock properly applies to Title IX based on the textual similarity
between Title VII and Title IX; subsequent case law including the Grimm
decision cited above, as well as cases recognizing the harm that
students may endure as a result of differential treatment based on
gender identity or sexual orientation; \5\ and the Civil Rights
Division's memorandum discussed above.
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\4\ U.S. Department of Education, Enforcement of Title IX of the
Education Amendments of 1972 with Respect to Discrimination Based on
Sexual Orientation and Gender Identity in Light of Bostock v.
Clayton County, Notice of Interpretation, 86 FR 32637 (June 22,
2021).
\5\ See, e.g., Grimm, 972 F.3d at 617-18 (describing injuries to
a transgender boy's physical and emotional health as a result of
denial of equal treatment); Dodds v. U.S. Dep't of Educ., 845 F.3d
217, 221-22 (6th Cir. 2016) (describing ``substantial and immediate
adverse effects on the daily life and well-being of an eleven-year-
old'' transgender girl from denial of equal treatment); Doe v. Univ.
of Scranton, No. 3:19-CV-01486, 2020 WL 5993766, at *1-3 (M.D. Pa.
Oct. 9, 2020) (describing harassment and physical targeting of a gay
college student that interfered with the student's educational
opportunity); Harrington v. City of Attleboro, No. 15-CV-12769-DJC,
2018 WL 475000, at *6-7 (D. Mass. Jan. 17, 2018) (describing
```wide-spread peer harassment' and physical assault [of a lesbian
high school student] because of stereotyping animus focused on [the
student's] sex, appearance, and perceived or actual sexual
orientation'').
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Section 188 of WIOA expressly incorporates Title IX's prohibition
on sex discrimination. 29 U.S.C. 3248(a)(2) (specifying that ``[n]o
individual shall 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 such program or activity
[funded or otherwise financially assisted in whole or in part under
Title I of WIOA] because of . . . sex (except as otherwise permitted
under title IX of the Education Amendments of 1972 . . .)''); see also
id. 3248(a)(1) (providing that ``programs and activities funded or
otherwise financially assisted in whole or in part under [WIOA] are
considered to be programs and activities receiving Federal financial
assistance'' for the purpose of applying the prohibition against
discrimination on the basis of sex under Title IX).
Consistent with the Supreme Court's interpretation of Title VII in
Bostock and with the case law and interpretations discussed above
applying the same conclusion to Title IX, beginning April 7, 2022, CRC
interprets Section 188's prohibition on discrimination on the basis of
sex to include discrimination on the basis of sexual orientation, as
well as gender identity and transgender status. This interpretation
will guide CRC in processing complaints and conducting investigations
and compliance reviews, but it does not determine the outcome in any
particular case, which will depend on the specific facts and
circumstances. Any action taken by CRC in a specific case will take
account of all relevant facts and legal requirements, including, where
applicable, Title IX's religious exemption and other exemptions, which
are incorporated into Section 188, see 29 U.S.C. 3248(a)(2), and the
Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq.
If you think that you have, or any specific class of individuals
has, been subjected to discrimination under a WIOA Title I-financially
assisted program or activity, you may file a complaint within 180 days
from the date of the alleged violation with either: (1) The recipient's
Equal Opportunity Officer (or the person whom the recipient has
designated for this purpose) or (2) CRC, via postal mail addressed to
The Director, Civil Rights Center (CRC), U.S. Department of Labor, 200
Constitution Avenue NW, Room N-4123, Washington, DC 20210, or
electronically as directed on the CRC website at <a href="https://www.dol.gov/agencies/oasam/centers-offices/civil-rights-center/external/how-to-file-complaint">https://www.dol.gov/agencies/oasam/centers-offices/civil-rights-center/external/how-to-file-complaint</a>. The complaint will be processed in accordance with the
procedures at 29 CFR 38.69-.85. After investigating the complaint, if
the Director of CRC finds reasonable cause to believe that the
recipient has violated WIOA Section 188 or its implementing
regulations, the Director is required to issue an Initial Determination
that includes the opportunity for the recipient to engage in voluntary
compliance negotiations. 29 CFR 38.87(e).
Martin J. Walsh,
Secretary, Department of Labor.
[FR Doc. 2022-07290 Filed 4-6-22; 8:45 am]
BILLING CODE 4510-04-P
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</html>Indexed from Federal Register on April 7, 2022.
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