| 28 CFR 42.201
TITLE 28--JUDICIAL ADMINISTRATION
CHAPTER I--DEPARTMENT OF JUSTICE
PART 42--NONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY;
POLICIES AND PROCEDURES
Subpart D--Nondiscrimination in Federally Assisted Programs--
Implementation of Section 815(c)(1) of the Justice System Improvement Act of 1979
Authority: Secs. 802(a), 815(c), and 817(d) of the Justice System
Improvement Act of 1979, 42 U.S.C. 3701, et seq., as amended (Pub. L.
90-351, as amended by Pub. L. 93-83, Pub. L. 93-415, Pub. L. 94-503, and
Pub. L. 96-157 (December 27, 1979) (JSIA) and Sec. 262 of the Juvenile
Justice and Delinquency Prevention Act of 1974, as amended, 42 U.S.C.
5672 (Pub. L. 93-415, as amended by Pub. L. 95-115)).
Source: 45 FR 28705, Apr. 30, 1980, unless otherwise noted.
Sec. 42.201 Purpose and application.
(a) The purpose of this subpart is to implement the provisions of
section
[[Page 695]]
815(c) of the Justice System Improvement Act of 1979 (42 U.S.C.
3789d(c); title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d; and
title IX of the Education Amendments of 1972, 20 U.S.C. 1681, et seq.,
to the end that no person in any State shall on the ground of race,
color, national origin, sex, or religion be excluded from participation
in, be denied the benefits of, be subjected to discrimination under, or
be denied employment in connection with any program or activity funded
in whole or in part with funds made available under either the Justice
System Improvement Act or the Juvenile Justice Act by the Law
Enforcement Assistance Administration, the National Institute of
Justice, or the Bureau of Justice Statistics. These regulations also
implement Executive Order 12138, which requires all Federal agencies
awarding financial assistance to take certain steps to advance women's
business enterprise.
(b) The regulations in this subpart apply to the delivery of
services by, and employment practices of recipients administering,
participating in, or substantially benefiting from any program or
activity receiving Federal financial assistance extended under the
Justice System Improvement Act of 1979, or the Juvenile Justice and
Delinquency Prevention Act of 1974, as amended.
(c) Where a private recipient which receives such assistance through
a unit of government is engaged in prohibited discrimination, the Office
of Justice Assistance, Research, and Statistics will invoke the
enforcement procedures of this subpart (Sec. 42.208, et seq.) against
the appropriate unit of government for failure to enforce the assurances
of nondiscrimination given it by the private recipient pursuant to
Sec. 42.204(a). Where a private recipient receives assistance either
directly from the Law Enforcement Assistance Administration, the
National Institute of Justice, or the Bureau of Justice Statistics or
through another private entity which receives funds directly from one of
those agencies, compliance will be enforced pursuant to section 803(a)
of the Justice System Improvement Act.
Sec. 42.202 Definitions.
(a) JSIA means the Justice System Improvement Act of 1979, Public
Law 96-157, 42 U.S.C. 3701, et seq.
(b) Juvenile Justice Act means title I and II of the Juvenile
Justice and Delinquency Prevention Act of 1974, Public Law 93-415, as
amended by Public Law 94-503 and Public Law 95-115.
(c) OJARS or Office means the Office of Justice Assistance,
Research, and Statistics.
(d) LEAA means the Law Enforcement Assistance Administration.
(e) NIJ means the National Institute of Justice.
(f) BJS means the Bureau of Justice Statistics.
(g) Employment practices means all terms and conditions of
employment including but not limited to, all practices relating to the
screening, recruitment, referral, selection, training, appointment,
promotion, demotion, and assignment of personnel, and includes
advertising, hiring, assignments, classification, discipline, layoff and
termination, upgrading, transfer, leave practices, rate of pay, fringe
benefits, or other forms of pay or credit for services rendered and use
of facilities.
(h) Investigation includes fact-finding efforts and, pursuant to
Sec. 42.205(c)(3), attempts to secure the voluntary resolution of
complaints.
(i) Compliance review means a review of a recipient's selected
employment practices or delivery of services for compliance with the
provisions of section 815(c)(1) of the Justice System Improvement Act,
or this subpart.
(j) Noncompliance means the failure of a recipient to comply with
section 815(c)(1) of the Justice System Improvement Act, or this
subpart.
(k) Program or activity means the operation of the agency or
organizational unit of government receiving or substantially benefiting
from financial assistance awarded, e.g., a police department or
department of corrections.
(l) Pattern or practice means any procedure, custom, or act
affecting or potentially affecting, more than a single individual in a
single or isolated instance.
(m) Religion includes all aspects of religious observance and
practice as well as belief.
[[Page 696]]
(n) Recipient means any State or local unit of government or agency
thereof, and any private entity, institution, or organization, to which
Federal financial assistance is extended directly, or through such
government or agency, but such term does not include any ultimate
beneficiary of such assistance.
(o) State means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Trust Territory of the Pacific Islands, and the
Commonwealth of the Northern Mariana Islands;
(p) Unit of local government means any city, county, township, town,
borough, parish, village or other general purpose political subdivision
of a State, an Indian tribe which performs law enforcement functions as
determined by the Secretary of the Interior, or, for the purpose of
assistance eligiblity, any agency of the District of Columbia government
or the U.S. Government performing law enforcement functions in and for
the District of Columbia;
(q) Combination as applied to States or units of local government
means any grouping or joining together of such States or units for the
purpose of preparing, developing, or implementing a criminal justice
program or project;
(r) Criminal justice council or CJC means the agency designated by a
State to perform the functions listed in section 402(b)(1) of the
Justice System Improvement Act.
(s) All masculine terms such as he, his, and him should be construed
to mean their respective feminine counterparts, she, hers, and her,
where appropriate.
[45 FR 28705, Apr. 30, 1980; 45 FR 54037, Aug. 14, 1980]
Sec. 42.203 Discrimination prohibited.
(a) No person in any State shall on the ground of race, color,
religion, national origin, or sex be excluded from participation in, be
denied the benefits of, be subjected to discrimination under, or denied
employment in connection with any program or activity funded in whole or
in part with funds made available under the JSIA or the Juvenile Justice
Act.
(b) A recipient may not, directly or through contractual or other
arrangements, on the grounds set forth in paragraph (a) of this section:
(1) Deny an individual any disposition, service, financial aid, or
benefit provided under the program;
(2) Provide any disposition, 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 program;
(3) Subject an individual to segregation or separate treatment in
any matter related to his receipt of any disposition, service, financial
aid, or benefit under the program;
(4) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any disposition,
service, or financial aid or benefit under the program;
(5) 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 disposition, service, financial aid,
function, or benefit provided under the program;
(6) 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;
(7) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program;
(8) Subject any individual to physical abuse or summary punishment,
or deny any individual the rights guaranteed by the Constitution to all
persons;
(9) Subject any individual to discrimination in its employment
practices in connection with any program or activity funded in whole or
in part with funds made available under the JSIA or the Juvenile Justice
Act;
(10) Use any selection device in a manner which is inconsistent with
the Department of Justice Uniform on Employee Selection Guidelines, 28
CFR 50.14.
(c) In matters involving employment discrimination, section
815(c)(1) of the JSIA shall be interpreted by the Office consistently
with title VII of the Civil Rights Act of 1964, Public Law 88-352,
[[Page 697]]
79 Stat. 253, as amended by the Equal Employment Opportunity Act of
1972, Public Law 92-261, 87 Stat. 103, and the Pregnancy Discrimination
Act, Public Law 95-555, 92 Stat. 2076.
(d) The use of a minimum height or weight requirement which operates
to disproportionately exclude women and persons of certain national
origins, such as persons of Hispanic or Asian descent, is a violation of
this subpart, unless the recipient is able to demonstrate convincingly,
through use of supportive factual data, that the requirement has been
validated as set forth in the Department of Justice Guidelines on
Employee Selection Procedures, 28 CFR 50.14.
(e) A recipient, in determining the type of disposition, services,
financial aid, benefits, or facilities which will be provided under any
program, or the class of individuals to whom, or the situations in
which, such will be provided under any program, may not directly or
through contractual or other arrangements, utilize criteria or methods
of administration which have the effect of subjecting individuals to
discrimination under section 815(c)(1) of the JSIA, or have the effect
of defeating or substantially impairing accomplishment of the objectives
of the program as respects individuals of a particular race, color, sex,
national origin, or religion.
(f) In determining the site or location of facilities, a recipient
or applicant may not make selections with the purpose or effect of
excluding individuals from, denying them the benefits of, subjecting
them to discrimination under, or denying them employment in connection
with any program or activity to which this subpart applies; or with the
purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of the JSIA, the Juvenile Justice Act,
or this subpart.
(g) For the purposes of this section, the disposition, services,
financial aid, or benefits provided under a program or activity
receiving Federal financial assistance shall be deemed to include any
portion of any program or function or activity conducted by any
recipient of Federal financial assistance which program, function, or
activity is directly or indirectly improved, enhanced, enlarged, or
benefited by such Federal financial assistance or which makes use of any
facility, equipment, or property provided with the aid of Federal
financial assistance.
(h) The enumeration of specific forms of prohibited discrimination
in paragraphs (b) through (g) of this section does not limit the
generality of the prohibition in paragraph (a) of this section.
(i)(1) In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color,
religion, national origin, or sex, the recipient must take affirmative
action to overcome the effects of prior discrimination.
(2) Even in the absence of such prior discrimination, a recipient in
administering a program may take affirmative action to overcome the
effects of conditions which resulted in limiting participation by
persons of a particular race, color, religion, national origin, or sex.
(j) Nothing contained in this subpart shall be construed as
requiring any recipient to adopt a percentage ratio, quota system, or
other program to achieve racial balance. The use of goals and timetables
is not use of a quota prohibited by this section.
[45 FR 28705, Apr. 30, 1980, as amended at 45 FR 54036, Aug. 14, 1980]
Sec. 42.204 Applicants' obligations.
(a) Every application for Federal financial assistance to which this
subpart applies shall, as a condition of approval of such application
and the extension of any Federal financial assistance pursuant to such
application, contain or be accompanied by an assurance that the
applicant will comply with all applicable nondiscrimination requirements
and will obtain such assurances from its subgrantees, contractors, or
subcontractors to which this subpart applies, as a condition of the
extension of Federal financial assistance to them.
(b) Every unit of State or local government and every agency of such
unit that applies for a grant of $500,000 or more under the JSIA or the
Juvenile Justice Act, must submit a copy of its
[[Page 698]]
current Equal Employment Opportunity Program (if required to develop one
under 28 CFR 42.301, et. seq.) to OJARS at the same time it submits its
grant application. No application for $500,000 or more will be approved
until OJARS has approved the applicant's EEOP.
(c) Every application for Federal financial assistance from a State
or local unit of government or agency thereof shall contain an assurance
that in the event a Federal or State court or Federal or State
administrative agency makes a finding of discrimination after a due
process hearing, on the ground of race, color, religion, national
origin, or sex against the recipient State or local government unit, or
agency, the recipient will forward a copy of the finding to the
appropriate CJC and to OJARS.
[45 FR 28705, Apr. 30, 1980, as amended at 45 FR 54037, Aug. 14, 1980]
Sec. 42.205 Complaint investigation.
(a) The Office shall investigate complaints filed by or on behalf of
an individual claiming to be aggrieved, that allege a violation of
section 815(c)(1) of the JSIA, or this subpart.
(b) No complaint will be investigated if it is received more than
one year after the date of the alleged discrimination, unless the time
for filing is extended by the Director of OJARS for good cause shown.
(c) The Office shall conduct investigations of complaints as
follows:
(1) Within 21 days of receipt of a complaint, the Office shall:
(i) Ascertain whether it had jurisdiction under paragraphs (a) and
(b) of this section;
(ii) If jurisdiction is found, notify the recipient alleged to be
discriminating of its receipt of the complaint; and
(iii) Initiate the investigation.
(2) The investigation will ordinarily be initiated by a letter
requesting data pertinent to the complaint and advising the recipient
of:
(i) The nature of the complaint, and, with the written consent of
the complainant, the identity of the complainant;
(ii) The programs or activities affected by the complaint;
(iii) The opportunity to make, at any time prior to receipt of the
Office's preliminary findings, a documentary submission, responding to,
rebutting, or denying the allegations made in the complaint; and
(iv) The schedule under which the complaint will be investigated and
a determination of compliance or non-compliance made.
Copies of this letter will also be sent to the chief executive of the
appropriate unit(s) of government, and to the appropriate CJC.
(3) Within 150 days or, where an on-site investigation is required,
within 175 days after the initiation of the investigation, the Office
shall advise the complainant, the recipient, the chief executive(s) of
the appropriate unit(s) of government, and the appropriate CJC of:
(i) Its investigative findings;
(ii) Where appropriate, its recommendations for compliance; and
(iii) If it is likely that satisfactory resolution of the complaint
can be obtained, the recipient's opportunity to request the Office to
engage in voluntary compliance negotiations prior to the Director of
OJARS' determination of compliance or non-compliance.
(4) If, within 30 days, the Office's recommendations for compliance
are not met, or voluntary compliance is not secured, the matter will be
forwarded to the Director of OJARS for a determination of compliance or
non-compliance. The determination shall be made no later than 14 days
after the conclusion of the 30-day period. If the Director makes a
determination of non-compliance with section 815(c)(1) of the JSIA, the
Office shall institute administrative proceedings pursuant to
Sec. 42.208 et seq.
(5) If the complainant or another party, other than the Attorney
General, has filed suit in Federal or State court alleging the same
discrimination alleged in a complaint to OJARS, and, during OJARS'
investigation, the trial of that suit would be in progress, OJARS will
suspend its investigation and monitor the litigation through the court
docket and, where necessary, contacts with the complainant. Upon receipt
of notice that the court has made a finding of a pattern or practice of
discrimination within the meaning
[[Page 699]]
of Sec. 42.208, the Office will institute administrative proceedings
pursuant to Sec. 42.208, et seq. Upon receipt of notice that the court
has made a finding affecting only the complainant, the Office will adopt
the findings of the court as its investigative findings pursuant to
Sec. 42.205(c)(3).
(6) The time limits listed in paragraphs (c)(1) through (c)(5) of
this section shall be appropriately adjusted where OJARS requests
another Federal agency or another branch of the Department of Justice to
act on the complaint. OJARS will monitor the progress of the matter
through liaison with the other agency. Where the request to act does not
result in timely resolution of the matter, OJARS will institute
appropriate proceedings pursuant to this section.
[45 FR 28705, Apr. 30, 1980; 45 FR 54037, Aug. 14, 1980]
Sec. 42.206 Compliance reviews.
(a) The Office shall periodically conduct:
(1) Pre-award compliance reviews of all applicants requesting a
grant from LEAA, NIJ, or BJS for $500,000 or more; and
(2) Post-award compliance reviews of selected recipients of LEAA,
NIJ, or BJS assistance.
(b) Pre-award reviews. The Office shall review selected formula,
discretionary, and national priority applications for $500,000 or more
in order to determine whether the application presents a possibility of
discrimination in the services to be performed under the grant, or in
the employment practices of the applicant. In those instances where it
finds such a possibility, the Office shall special condition, disapprove
or take other action with respect to the application to assure that the
project complies with section 815(c)(1) of the JSIA.
(c) Post-award reviews. The Office shall seek to review those
recipients which appear to have the most serious equal employment
opportunity problems, or the greatest disparity in the delivery of
services to the minority and non-minority or male and female communities
they serve. Selection for review shall be made on the basis of:
(1) The relative disparity between the percentage of minorities, or
women, in the relevant labor market, and the percentage of minorities,
or women, employed by the recipient;
(2) The percentage of women and minorities in the population
receiving program benefits;
(3) The number and nature of discrimination complaints filed against
a recipient with OJARS or other Federal agencies;
(4) The scope of the problems revealed by an investigation commenced
on the basis of a complaint filed with the Office against a recipient or
by a pre-award compliance review; and
(5) The amount of assistance provided to the recipient.
(d) Within 15 days after selection of a recipient for review, the
Office shall inform the recipient that it has been selected and will
initiate the review. The review will ordinarily be initiated by a letter
requesting data pertinent to the review and advising the recipient of:
(1) The practices to be reviewed;
(2) The programs or activities affected by the review;
(3) The opportunity to make, at any time prior to receipt of the
Office's investigative findings, a documentary submission responding to
the Office, explaining, validating, or otherwise addressing the
practices under review; and
(4) The schedule under which the review will be conducted and a
determination of compliance or non-compliance made.
Copies of this letter will also be sent to the chief executive of the
appropriate unit(s) of government, and to the appropriate CJC.
(e) Within 150 days or, where an on-site investigation is required,
within 175 days after the initiation of the review, the Office shall
advise the recipient, the chief executive(s) of the appropriate unit(s)
of government, and the appropriate CJC, of:
(1) Its investigative findings;
(2) Where appropriate, its recommendations for compliance; and
(3) The opportunity to request the Office to engage in voluntary
compliance negotiations prior to the Director of OJARS' determination of
compliance or noncompliance.
(f) If, within 30 days, the Office's recommendations for compliance
are not
[[Page 700]]
met, or voluntary compliance is not secured, the Director of OJARS shall
make a determination of compliance or non-compliance. The determination
shall be made no later than 14 days after the conclusion of the 30-day
negotiation period. If the Director makes a determination of non-
compliance with section 815(c) of the JSIA, the Office shall institute
administrative proceedings pursuant to Sec. 42.208, et seq.
[45 FR 28705, Apr. 30, 1980; 45 FR 54037, Aug. 14, 1980]
Sec. 42.207 Compliance information.
(a) Each recipient shall:
(1) Keep such records, and submit to OJARS such timely, complete,
and accurate information as OJARS may request to determine whether the
recipient is complying with section 815(c)(1) of the JSIA; and
(2) Permit reasonable access by OJARS to its books, documents,
papers, and records, to the extent necessary to determine whether the
recipient is complying with section 815(c)(1) of the JSIA.
(b) Failure to comply with Sec. 42.207(a) shall subject the
recipient to the sanctions provided in section 803(a) of the JSIA, 42
U.S.C. 3783(a).
Sec. 42.208 Notice of noncompliance.
(a) Whenever the Office has:
(1) Received notice of a finding, after notice and opportunity for a
hearing by:
(i) A Federal court (other than in an action brought by the Attorney
General under section 815(c)(3) of the JSIA);
(ii) A State court; or
(iii) A Federal or State administrative agency (other than the
Office under paragraph (a)(2) of this section); to the effect that there
has been a pattern or practice of discrimination in violation of section
815(c)(1) of the JSIA; or
(2) Made a determination after an investigation by the Office
pursuant to Sec. 42.205 or Sec. 42.206 of this subpart that a State
government or unit of general local government, or agency thereof, is
not in compliance with this subpart, or section 815(c)(1) of the JSIA,
or this subpart: the Office shall, within 10 days after such occurrence,
notify the chief executive of the affected State and, if the action
involves a unit of general local government, the chief executive of such
unit of general local government, that such program or activity has been
so found or determined not to be in compliance with this subpart or
section 815(c)(1) of the JSIA or this subpart, and shall request each
chief executive notified under this section with respect to such
violation to secure compliance.
(b) For the purposes of this section, notice means:
(1) Publication in--
(i) Employment Practices Decisions, Commerce Clearinghouse, Inc.;
(ii) Fair Employment Practices, Bureau of National Affairs, Inc.;
(iii) The United States Law Week, Bureau of National Affairs, Inc.;
or
(iv) Federal Supplement, Federal Reporter, or Supreme Reporter, West
Publishing Company; or
(2) Receipt by the Office of a reliable copy of a pattern or
practice finding, made after a due process hearing from any source.
(c) When the Office receives notice of a finding which has been made
more than 120 days prior to receipt, the Office will determine if the
finding is currently applicable.
(1) In determining the current applicability of the finding, the
Office will contact the clerk of the court and the office of the
deciding judge (or the appropriate agency official) to determine whether
any subsequent orders have been entered.
(2) If the information is unavailable through the clerk or the
office of the judge (or the appropriate agency official), the Office
will contact the attorneys of record for both the plaintiff and
defendant to determine whether any subsequent orders have been entered,
or if the recipient is in compliance.
(3) If, within 10 days of receipt of notice, it is not determined
through the procedures set forth in paragraphs (c)(1) and (2) of this
section, that the recipient is in full compliance with a final order of
the court (or agency) within the meaning of Sec. 42.211(b), the Office
will notify the appropriate chief executive of the recipient's
noncompliance as provided in Sec. 42.208(a).
[[Page 701]]
(d) For purposes of paragraph (a)(1)(iii) of this section a finding
by a Federal or State administrative agency shall be deemed rendered
after notice and opportunity for a hearing if it is rendered pursuant to
procedures consistent with the provisions of subchapter II of chapter 5,
title 5, U.S. Code (the Administrative Procedures Act).
(e) The procedures of a Federal or State administrative agency shall
be deemed to be consistent with the Administrative Procedure Act (APA)
if:
(1) The agency gives all interested parties opportunity for--
(i) The submission and consideration of facts, arguments, offers of
settlement, or proposals of adjustment when time, the nature of the
proceeding, and the public interest permit; and
(ii) Hearing on notice, and a decision by an individual who did not
participate in the investigation or prosecution of the matter.
(2) A party is entitled to be represented by counsel or other
qualified representative, to present his case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to conduct such
cross-examination as may be required for a full and true disclosure of
the facts; and
(3) The record shows the ruling on each finding, conclusion, or
exception presented. All decisions, including initial recommended, and
tentative decisions, shall be a part of the record and shall include a
statement of--
(i) Findings and conclusions, and the reasons or basis therefor, on
all the material issues of fact, law, or discretion presented on the
record; and
(ii) The appropriate rule, order, sanction, relief, or definal
thereof.
(f) If within 10 days of receipt of notice the Office cannot
determine whether the finding was rendered pursuant to procedures
consistent with the APA, it shall presume the APA procedures were
applied, and send notification under Sec. 42.208(a) to the appropriate
chief executive(s).
(g) Each notification under Sec. 42.208(a) shall advise the
appropriate chief executive of:
(1) The program or activity determined to be in noncompliance;
(2) The general legal and factual basis for its determination;
(3) The Office's request to secure compliance;
(4) The action to be taken by the Office and the provisions of law
under which the proposed action is to be taken should the chief
executive fail to secure compliance; and
(5) The right of the recipient to request a preliminary hearing,
pursuant to Sec. 42.212, and a full hearing, pursuant to Sec. 42.213.
Sec. 42.209 Compliance secured.
(a) In the event a chief executive secures compliance after notice
pursuant to Sec. 42.208, the terms and conditions with which the
affected State government or unit of general local government agrees to
comply shall be set forth in writing and signed by the chief executive
of the State, by the chief executive of such unit (in the event of a
violation by a unit of general local government), and by the Director of
OJARS.
(b) Prior to the effective date of the agreement, the Office shall
send a copy of the agreement to each complainant, if any, with respect
to such violation, and to the appropriate CJC.
(c) The chief executive of the State, or the chief executive of the
unit (in the event of a violation by a unit of general local government)
shall file semi-annual reports with the Office detailing the steps taken
to comply with the agreement.
(d) Within 15 days of receipt of such reports, the Office shall send
a copy to each complainant, if any.
(e) The Director of OJARS shall also determine a recipient to be in
compliance if it complies fully with the final order or judgement of a
Federal or State court, pursuant to Sec. 42.211 (a)(2) and (b), or if
found by such court to be in compliance with section 815(c)(1).
Sec. 42.210 Compliance not secured.
(a) If, at the conclusion of 90 days after notification of
noncompliance with section 815(c)(1):
(1) Compliance has not been secured by the chief executive of that
State or the chief executive of that unit of general local government;
and
[[Page 702]]
(2) An administrative law judge has not made a determination under
Sec. 42.212 that it is likely the State government or unit of local
government will prevail on the merits;
the Office shall notify the Attorney General that compliance has not
been secured and shall cause to have suspended further payment of any
funds under the JSIA or Juvenile Justice Act, as appropriate, to the
specific program or activity in which the noncompliance has been found.
(b) If a hearing is requested pursuant to Sec. 42.213, the
suspension of funds shall be effective for a period of not more than 30
days after the conclusion of the hearing, or in the absence of a hearing
under Sec. 42.213, funds shall be suspended for not more than 120 days,
unless there has been an express finding by the Director of OJARS after
notice and opportunity for such a hearing, that the recipient is not in
compliance with section 815(c)(1) of the JSIA, or this subpart.
Sec. 42.211 Resumption of suspended funds.
(a) Payment of suspended funds made available under the JSIA or the
Juvenile Justice Act shall resume only if--
(1) Such State government or unit of general local government enters
into a compliance agreement signed by the Director of OJARS in
accordance with Sec. 42.209;
(2) Such State government or unit of general local government:
(i) Complies fully with the final order or judgment of a Federal or
State court, if that order or judgement covers all matters raised by the
Director of OJARS in the notice pursuant to Sec. 42.208, or
(ii) Is found to be in compliance with section 815(c)(1) of the JSIA
by such court;
(3) After a hearing, the Director of OJARS, pursuant to Sec. 42.213,
finds that noncompliance has not been demonstrated; or
(4) An administrative law judge has determined, under Sec. 42.212,
that it is likely that the State government or unit of local government
will prevail on the merits.
(b) Full compliance with a court order, for the purposes of
paragraph (2) of this section, includes the securing of an agreement to
comply over a period of time, particularly in complex cases or where
compliance would require an extended period of time for implementation.
Sec. 42.212 Preliminary hearing.
(a) Prior to the suspension of funds under Sec. 42.210(a), but
within the 90-day period after notification under Sec. 42.208, the State
government or unit of local government may request an expedited
preliminary hearing on the record in accordance with 5 U.S.C. 554 in
order to determine whether it is likely that the State government or
unit of local government would, at a full hearing under Sec. 42.213,
prevail on the merits on the issue of the alleged noncompliance.
(b) The preliminary hearing shall be initiated within 30 days of
request. The ALJ shall make his finding within 15 days after the
conclusion of the preliminary hearing.
Sec. 42.213 Full hearing.
(a) At any time after notification of noncompliance under
Sec. 42.208, but before the conclusion of the 120-day suspension period
referred to in Sec. 42.210, a State government or unit of general local
government may request a hearing on the record in accordance with 5
U.S.C. 554 in order to contest the findings of determination of
noncompliance made under Sec. 42.208. The Office shall initiate the
hearing within 60 days of request.
(b) Within 30 days after the conclusion of the hearing, or, in the
absence of a hearing, at the conclusion of the 120-day period referred
to in Sec. 42.210, the Director of OJARS shall make a finding of
compliance or noncompliance.
(1) If the Director makes a finding of noncompliance, the Director
shall:
(i) Notify the Attorney General in order that the Attorney General
may institute a civil action under section 815(c)(3) of the JSIA;
(ii) Cause to have terminated the payment of funds under the JSIA
and/or the Juvenile Justice Act; and
(iii) If appropriate, seek repayment of funds.
(2) If the Director makes a finding of compliance, payment of the
suspended
[[Page 703]]
funds and reconsideration of applications shall resume.
Sec. 42.214 Judicial review.
Any State government or unit of general local government aggrieved
by a final determination of the Office under Sec. 42.213 may appeal such
determination as provided in section 805 of the JSIA.
Sec. 42.215 Other actions authorized under the JSIA.
(a) The Director of OJARS may, at any time, request the Attorney
General to file suit to enforce compliance with section 815(c)(1). OJARS
will monitor the litigation through the court docket and liaison with
the Civil Rights Division of the Department of Justice. Where the
litigation does not result in timely resolution of the matter, and funds
have not been suspended pursuant to Sec. 42.215(b), OJARS will institute
administrative proceedings unless enjoined from doing so by the court.
(b)(1) Whenever the Attorney General files a civil action alleging a
pattern or practice of discriminatory conduct on the basis of race,
color, religion, national origin, or sex in any program or activity of a
State government or unit of local government which State government or
unit of local government receives funds made available under the JSIA or
the Juvenile Justice Act and the conduct allegedly violates or would
violate the provisions of this subpart or section 815(c)(1) of the JSIA
and neither party within 45 days after such filing has been granted such
preliminary relief with regard to the suspension or payment of funds as
may otherwise be available by law, the Director of OJARS shall suspend
further payment of any funds under the JSIA and the Juvenile Justice Act
to that specific program or activity alleged by the Attorney General to
be in violation of the provisions of section 815(c)(1) of the JSIA until
such time as the court orders resumption of payment.
(2) The Office expects that preliminary relief authorized by this
subsection will not be granted unless the party making application for
such relief meets the standards for a preliminary injunction.
(c)(1) Whenever a State government or unit of local government or
any officer or employee thereof acting in an official capacity, has
engaged or is engaging in any act or practice prohibited by section
815(c)(1) of the JSIA, a civil action may be instituted after exhaustion
of administrative remedies by the person aggrieved in an appropriate
U.S. District Court or in a State court or general jurisdiction.
(2) Administrative remedies shall be deemed to be exhausted upon the
expiration of 60 days after the date the administrative complaint was
filed with the Office or any other administrative enforcement agency,
unless within such period there has been a determination by the Office
or the agency on the merits of the complaint, in which case such
remedies shall be deemed exhausted at the time the determination becomes
final.
(3) The Attorney General, or a specifically designated assistant for
or in the name of the United States may intervene upon timely
application in any civil action brought to enforce compliance with
section 815(c)(1) of the JSIA if he certifies that the action is of
general public importance. In such action the United States shall be
entitled to the same relief as if it had instituted the action.
Appendix A to Subpart D--Commentary
Section 42.201(c). The compliance enforcement mechanism of section
815(c)(2) applies by its terms to State and local government. The
prohibitions in section 815(c)(1), however, apply to all recipients of
OJARS assistance. Accordingly, where a private entity which has received
LEAA, NIJ, or BJS assistance through a State or local unit of government
is determined by OJARS to be in non-compliance, OJARS will invoke the
section 815(c)(2) mechanism against the appropriate unit of government
for its failure to enforce the assurances of compliance given it by the
private recipient, unless the unit has initiated its own compliance
action against the private recipient. The fund termination procedures of
section 803(a) will be invoked against non-complying private recipients
which receive assistance directly from LEAA, NIJ, or BJS, or through
another private entity.
Section 42.202(g). Section 815(c)(1) of the JSIA limits suspension
and termination of assistance in the event of noncompliance to
[[Page 704]]
the ``programs or activity'' in which the noncompliance is found. The
phrase ``program or activity'' was first used in section 815(c)(1) of
the Crime Control Act of 1976, the substantially identical predecessor
to section 815(c)(1).
House Report No. 94-1155 (94th Congress, 2d Session), at p. 26,
explained the provision as follows:
``Suspension may be limited to the specific program or activity
found to have discriminated, rather than all of the recipients' LEAA
funds.
``For example, if discriminatory employment practices in a city's
police department were cited in the notification, LEAA may only suspend
that part of the city's payments which fund the police department. LEAA
may not suspend the city's LEAA funds which are used in the city courts,
prisons, or juvenile justice agencies.''
This passage makes it clear that OJARS need not demonstrate a nexus
between the particular project funded and the discriminatory activity.
See Lau v. Nichols, 414 U.S. 563, 566 (1974).
Sections 42.203(b) and 42.203(e-i). These provisions are derived
from 28 CFR 42.104(b) of subpart C of the Department of Justice
Nondiscrimination Regulations. Where appropriate ``sex'' and
``religion'' have been added as prohibited grounds of discrimination,
and ``denial of employment'' as another activity within the scope of
section 815(c)(1).
Individual projects benefiting a particular sex, race, or ethnic
group are not violative of section 815(c)(1) unless the granting agency
or the recipient has engaged in a pattern of granting preferential
treatment to one such group, and cannot justify the preference on the
basis of a compelling governmental interest, in the case of racial or
ethnic discrimination, or a substantial relationship to an important
governmental function, in the case of sex discrimination.
Section 42.203(b)(10). On August 25, 1978, the Department of
Justice, the Equal Employment Opportunity Commission, the Department of
Labor and the then-Civil Service Commission published the Uniform
Employee Selection Guidelines codified at 28 CFR 50.14. Since OJARS is a
component of the Department, these guidelines are applicable to the
selection procedures of LEAA, NIJ, and BJS recipients. See 44 FR 11996
(March 2, 1979) for a detailed commentary on the guidelines.
Section 42.203(c). In the Conference Report on section 518(c) of the
Crime Control Act (the substantially identical predecessor of section
815(c)), the managers stated that ``In the area of employment cases
brought under this section, it is intended by the conferees that the
standards of title VII of the Civil Rights Act of 1964 apply.'' H. Rept.
No. 94-1723 (94th Cong., 2d Sess.) at p. 32.
This section makes the OJARS standards of employment discrimination
consistent with those used by the Civil Rights Division of the
Department of Justice. It further clarifies that the burden shifts to
the employer to validate its selection procedures once OJARS has
demonstrated that those procedures disproportionately exclude an
affected class. Discriminatory purpose on the part of the employer,
which must be shown before the burden shifts in a Fourteenth Amendment
case such as Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040 (1976),
need not be shown in an employment discrimination case brought under
section 815(c)(1).
Section 42.203(j). Section 815(b) of the JSIA reads:
``Notwithstanding any other provision of law, nothing contained in
this title shall be construed to authorize the National Institute of
Justice, the Bureau of Justice Statistics, or the Law Enforcement
Assistance Administration (1) to require, or condition the availability
or amount of a grant upon the adoption by an applicant or grantee under
this title of a percentage ratio, quota system, or other program to
achieve racial balance in any criminal justice agency; or (2) to deny or
discontinue a grant because of the refusal of an applicant or grantee
under this title to adopt such a ratio, system, or other program.''
In commenting on the Crime Control Act of 1976, Senator Roman Hruska
of Nebraska explained the difference between quotas and goals and
timetables as follows:
``Section 518(b) [now 815(b)] of the act prohibits the setting of
quotas. This provision was unchanged, and this provision will still bind
the Administration.
``LEAA does have an affirmative obligation under this law to seek to
eliminate discriminatory practices, voluntarily, if possible, prior to
resorting to fund termination. LEAA can request that a recipient
eliminate the effect of past discrimination by requiring the recipient
to commit itself to goals and timetables. The formulation of goals is
not a quota prohibited by section 518(b) of the act. A goal is a
numerical objective fixed realistically in terms of the number of
vacancies expected and the number of qualified applicants available.
Factors such as a lower attrition rate than expected, bona fide fiscal
restraints, or a lack of qualified applicants would be acceptable
reasons for not meeting a goal that has been established and no
sanctions would accrue under the program.'' Cong. Rec. S 17320
(September 30, 1976, daily ed.).
The Senate Judiciary Committee Report on the JSIA also emphasized
that section 815(b) does not ``undercut subsection (c) in any way;
subsection (b) has been interpreted so as not to limit LEAA's anti-
discrimination enforcement capabilities. Indeed, recent court decisions
have made this abundantly
[[Page 705]]
clear. See, e.g., United States v. City of Los Angeles, No. 77-3460
(C.D. Cal. 2/1/79).'' S. Rept. 96-142, p. 57.
See also the Equal Employment Opportunity Commission Affirmative
Action Guidelines, 44 FR 4422 (January 19, 1979).
Section 42.204. All grantees and subgrantees must make the
assurances found in paragraph (a). Only State and local units of
government and agencies thereof must make the assurance found in
paragraph (c), since, as explained in the commentary on Sec. 42.201(c),
the enforcement provisions of section 815(c)(2) apply only to
governmental recipients.
Section 42.205(a). Where information available to the Office clearly
and convincingly demonstrates that the complaint is frivolous or
otherwise without merit, the complaint will not be investigated, and the
complainant will be so advised.
Section 42.205(b). A one-year timeliness requirement is imposed to
ensure that OJARS will be devoting its resources to the resolution of
active issues, and to maximize the possibility that necessary witnesses
and evidence are still available.
Examples of good cause which would clearly warrant an extension of
the filing period are a statement from the complainant stating that he
or she was unware of the discrimination until after a year had passed,
or that he or she was not aware that a remedy was available through
OJARS.
Section 42.205(c)(1). Jurisdiction exists if the complaint alleges
discrimination on a ground prohibited by section 815(c)(1), if the
recipient was receiving funds at the time of the discrimination, and the
respondent named in the complaint is a current recipient of LEAA, NIJ,
or BJS assistance.
Prior to a determination of noncompliance, OJARS will attempt to
negotiate voluntary compliance only during the 30-day period following
receipt of the Office's preliminary findings, and only at the request of
the recipient, as provided in Sec. 42.205(c)(3). If a determination of
noncompliance is made, OJARS will participate in voluntary compliance
efforts during the 90-day period following the letter sent to the chief
executive(s) under section 42.208.
Sections 42.205(c) (3) and (4) and 42.206(e). OJARS will notify the
appropriate chief executive(s) of its recommendations during the
voluntary resolution phase of both the complaint investigation and
compliance review process. OJARS expects that the early involvement of
the chief executive will often expedite the resolution of issues.
Section 42.205(c)(5). OJARS will initiate an investigation if the
litigation discussed in this subparagraph becomes protracted or
apparently will not resolve the matter within a reasonable time.
Section 42.205(c)(6). In order to effectively utilize the resources
of other agencies, and to avoid duplication of effort, OJARS may request
another agency to act on a particular complaint. OJARS expects this
practice to be limited, and will attempt to ensure that any cooperative
agreement reached with another agency is consistent with the timetables
set forth in Sec. 42.205(c).
Section 42.206(a). OJARS recognizes the practical impossibility of
reviewing the compliance of each of its more than 39,000 recipients. The
regulations seek to expedite the review process by reducing its length
and narrowing its focus. Compliance reviews may, in some instances, be
limited to specific employment practices, or other functions of a
recipient, that appear to have the greatest adverse impact on an
affected class.
Section 42.206(b). The factors listed will be considered
cumulatively by OJARS in selecting recipients for reviews. OJARS will
consider data from all sources, including information provided by both
internal and external auditors.
Section 42.208(b). Upon receipt of the publications listed, OJARS
will review the case reports for findings that may be violations of
section 815(c)(1). In the case of the West Publishing Company reporters,
OJARS will consult the topic ``Civil Rights'' in the Key Number Digests
contained in the advance sheets.
Section 42.208(e). This subsection sets forth the minimum procedural
safeguards that OJARS would require of an administrative hearing to
assure the process was consistent with the Administrative Procedure Act.
The sufficiency of other procedures that may vary in form but insure due
process and the same opportunity for a fair hearing of both parties'
evidence will be determined by OJARS on a case-by-case basis.
The Office will compile a list of State agencies whose procedures
have been found consistent with the Administrative Procedure Act, and a
list of State agencies whose procedures have been found inconsistent.
When a finding of an agency not on either list is received, the Office
will attempt to reliably determine the procedures used to render the
findings.
Section 42.209(a). Although the signature of the appropriate chief
executives are ultimately required on the compliance agreement, these
regulations do not preclude them from delegating the responsibility for
securing compliance during the 90-day period following notification, to
State or local administrative or human rights agencies under their
respective authority. A compliance agreement may be an agreement to
comply over a period of time, particularly in complex cases or where
compliance would require an extended period of time for implementation.
Section 42.209(b). The regulations require that a copy of the
proposed compliance agreement be sent to the complainant, if
[[Page 706]]
any, before the effective date of the agreement. Although the Act would
permit a copy to be sent as late as the effective date, OJARS believes
the compliance agreement would be more likely to resolve all concerns
and discourage litigation if the complainant's views were considered
before it took effect.
Section 42.211(b). An example of a case where compliance would
require an extended period of time for implementation would be a court
order setting a goal of five years for an employer to raise the
percentage of minorities in its workforce to parity with the percentage
of minorities in the relevant geographical labor force.
Section 42.213. The full hearing will be conducted in accordance
with JSIA Hearing and Appeal Procedures, 28 CFR 18.1, et seq.
Section 42.215(a). In a December 20, 1976 letter to the
Administrator of LEAA, Congressman Peter Rodino, Chairman of the House
Judiciary Committee, commented on the regulations proposed to implement
the substantially identical nondiscrimination provisions of the Crime
Control Act. He advised the Administrator that ``the committee
intentionally omitted the word `refer' from the law to ensure that LEAA
would always retain administrative jurisdiction over a complaint filed
with them. It is not appropriate for LEAA to refer cases to the Civil
Rights Division or other Federal or State agencies without monitoring
the case for prompt resolution.''
Section 42.215(c)(2). The exhaustion of administrative remedies at
the end of 60 days (unless the Office has made a determination) does not
limit OJARS' authority to investigate a complaint after the expiration
of that period. OJARS will continue to investigate the complaint after
the end of the 60-day period, if necessary, in accordance with the
provisions of Sec. 42.205.
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