5398 Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices

DEPARTMENT OF JUSTICE

Executive Order 13160 Guidance

Document: Ensuring Equal

Opportunity in Federally Conducted

Education and Training Programs

AGENCY: Department of Justice.

ACTION: Notice: Guidance document.

SUMMARY: This Guidance Document

entitled ‘‘Executive Order 13160

Guidance Document’’ is being issued

pursuant to Executive Order 13160,

which was issued on June 23, 2000.

Executive Order 13160 prohibits

discrimination on the basis of race, sex,

color, national origin, disability,

religion, age, sexual orientation, and

status as a parent in federally conducted

education and training programs. The

Executive Order was issued in order to

achieve equal opportunity in all

federally conducted education and

training programs and is premised upon

the notion that the federal government

should hold itself to at least the same

principles of nondiscrimination in

educational opportunities as it applies

to the educational programs and

activities of recipients of federal

financial assistance. Toward that end,

the Executive Order is intended to

supplement existing laws and

regulations that already prohibit many

forms of discrimination in both

federally conducted and federally

assisted educational programs. The

purpose of this Guidance Document is

to assist all federal agencies in

complying with the nondiscrimination

mandates of Executive Order 13160 by

providing a basic framework for

implementation of the Executive Order.

Among the topics addressed in this

Guidance Document are the scope of

covered educational programs,

applicable legal principles, examples of

discriminatory conduct, enforcement

procedures, remedies, and agency

reporting requirements. The text of the

Guidance Document appears at the end

of this Notice.

DATES: Effective January 18, 2001.

ADDRESSES: Coordination and Review

Section, Civil Rights Division, P.O. Box

66560, Washington, D.C., 20035–6560.

FOR FURTHER INFORMATION CONTACT:

Merrily A. Friedlander, Chief,

Coordination and Review Section, Civil

Rights Division, (202) 307–2222.

Dated: January 11, 2001.

Janet Reno,

Attorney General, Department of Justice.

Executive Order 13160 Guidance

Document

I. Introduction

On June 23, 2000, the President of the

United States issued Executive Order

13160 in order to achieve equal

opportunity in all federally conducted

education and training programs. More

specifically, Executive Order 13160 was

designed to ensure nondiscrimination

on the basis of race, sex, color, national

origin, disability, religion, age, sexual

orientation, and status as a parent in

federally conducted education and

training programs and activities.

Executive Order 13160 is premised

upon the notion that the federal

government should hold itself to at least

the same principles of

nondiscrimination in educational

opportunities as it applies to the

educational programs and activities of

recipients of federal financial assistance.

Toward that end, the Executive Order is

intended to supplement existing laws

and regulations that already prohibit

many forms of discrimination in both

federally conducted and federally

assisted educational programs. Among

the most significant of these

nondiscrimination laws are the

Rehabilitation Act of 1973, 29 U.S.C.

701 et seq., as amended; the Age

Discrimination in Employment Act of

1967, 29 U.S.C. 621, et seq.; Titles VI

and VII of the Civil Rights Act of 1964,

42 U.S.C. 2000d, as amended; 42 U.S.C.

2000e-17, as amended; and Title IX of

the Education Amendments of 1972, 20

U.S.C. 1681 et seq.

In order to achieve equal opportunity

in all federally conducted education

programs, Section 1–102 of Executive

Order 13160 provides that:

No individual, on the basis of race, sex, color,

national origin, disability, religion, age,

sexual orientation, or status as a parent, shall

be excluded from participation in, be denied

the benefits of, or be subjected to

discrimination in, a federally conducted

education or training program or activity.

All federal agencies that conduct

education and training programs must

therefore commit themselves to

providing educational environments

that are entirely free from

discrimination based on race, sex, color,

national origin, disability, religion, age,

sexual orientation, and status as a

parent.

Pursuant to section 5–501 of

Executive Order 13160, this Guidance

Document has been developed to assist

all federal agencies in complying with

the nondiscrimination mandates of the

Executive Order. Among the topics

addressed herein are the scope of

covered educational programs,

applicable legal principles, examples of

discriminatory conduct, enforcement

procedures, remedies, and agency

reporting requirements.

This Guidance Document is intended

only to provide a basic framework for

implementation of Executive Order

13160. This Guidance Document is not

intended to be a comprehensive guide

for compliance. Rather, this Guidance

Document is designed only to provide a

starting point for agency

implementation, and this Document’s

failure to address a particular issue

should in no way be interpreted to mean

that such an issue falls outside the

scope of the nondiscrimination

protections established by the Executive

Order or this Guidance.

In order to supplement the basic

principles established in this Guidance

Document, it is anticipated that, from

time to time, the Department of Justice

will publish additional policies or

guidance documents to assist with the

enforcement of this Executive Order. In

addition, section 5–505 of the Executive

Order provides that, ‘‘[u]pon request

and to the extent practicable, the

Attorney General shall provide advice

and assistance to executive departments

and agencies to assist in full compliance

with this order.’’ Responsibility for

providing such advice and technical

assistance is delegated to the Assistant

Attorney General for Civil Rights, who

shall conduct, handle, or supervise the

performance of these functions.

II. Covered Education Programs and

Activities

Executive Order 13160 applies to all

federally conducted education and

training programs and activities.

Pursuant to section 2–201, ‘‘federally

conducted education and training

programs’’ include those that are

‘‘conducted, operated, or undertaken

by’’ an executive department or agency.

Section 2–202 of the Executive Order

provides that federally conducted

‘‘education and training programs and

activities’’ may include, but are not

limited to, the following:

(1) formal schools,

(2) extracurricular activities,

(3) academic programs,

(4) occupational training,

(5) scholarships and fellowships,

(6) student internships,

(7) training for industry members,

(8) summer enrichment camps, and

(9) teacher training programs.

As this definition makes clear,

education programs covered by

Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices 5399

1These examples were drawn from data provided

by various federal agencies during the development

of Executive Order 13160. The programs

enumerated above, however, are not necessarily

still in existence and, in some cases, are merely

hypothetical examples.

Executive Order 13160 may include

both long-term, formal academic

institutions (such as Department of

Defense Dependents Schools,

Department of Defense Domestic

Dependent Elementary and Secondary

Schools, and elementary or secondary

schools operated by the Department of

Interior, Bureau of Indian Affairs), as

well as short-term job training programs

(such as computer training courses for

federal employees).

Some examples 1 of the types of

education and training programs and

activities that might be covered by

Executive Order 13160 are discussed

below:

Ex. 1. The Office of Government Ethics

runs an agency ethics training course for

federal employees from other agencies.

Ex. 2. The Federal Deposit Insurance

Corporation operates a small computer

school which teaches state examiners to

analyze the weaknesses in the supervision of

a small bank data processing operation.

Ex. 3. The Department of Veteran Affairs

(VA) runs the VA Home Loan Training

Program, which offers information and

training to numerous private sector

enterprises that cooperate in providing VA

home loan benefits.

Ex. 4.The Nuclear Regulatory Commission

provides radiation control training for state

and local government personnel under the

State Agreements Program.

Ex. 5. The Federal Bureau of Investigation

(FBI) runs the FBI National Academy, an 11-

week multi-disciplinary program in

Quantico, Virginia, for federal, state, local,

and foreign officers who are considered to

have potential for further advancement in

their careers.

Ex. 6. The Department of Housing and

Urban Development operates the Community

First Leadership Program, which provides indepth training for representatives from state

and local governments and non-profit

organizations involved in housing and

community development programs.

Ex. 7. The Maritime Administration

conducts a Firefighting Training Program for

private, licensed and unlicensed U.S.

seafarers, who pay a fee for instruction in

fire-fighting safety.

Ex. 8. The United States Department of

Agriculture (USDA) operates the Graduate

School, USDA, which provides career-related

continuing education courses primarily

designed to meet the educational needs of

government employees.

Ex. 9. The Bureau of Alcohol, Tobacco, and

Firearms operates the Anacostia

Neighborhood Prevention Initiative, which

provides crime prevention training to the

public.

Ex. 10. The Peace Corps offers a World

Wise Schools program to students interested

in broadening their geographic and cultural

horizons.

Ex. 11. The National Aeronautics and

Space Administration conducts a tour of its

facilities to educate the public about

theSpace Shuttle Program.

Ex. 12. The Department of Justice conducts

computer training courses to regularly update

its employees on new software.

Ex. 13. The Federal Bureau of Prisons

conducts an inmate boot camp to prepare

inmates for reintegration into society.

Ex. 14. The U.S. Department of Agriculture

conducts an annual Summer Intern Program

for roughly 150 college students, who are

hired to work with professional staff on

projects related to the students’ majors and

career plans.

Ex. 15. The General Counsel’s Office at the

Federal Emergency Management Agency

hires law students to work as unpaid student

interns during the school year.

III. Exemptions From Coverage

Although Executive Order 13160 is

intended to provide broad-based

coverage for federally conducted

education and training programs,

section 3 of the Executive Order does

provide some exemptions from

coverage. As discussed below, there are

several circumstances under which the

nondiscrimination prohibitions of the

Executive Order do not apply to certain

federally conducted education and

training programs.

Military Programs

Section 3–301 explicitly states that

the Executive Order does not apply to

‘‘members of the armed forces, military

education or training programs, or

authorized intelligence activities.’’

Military education or training programs

are defined as education programs

conducted by the Department of Defense

(or, where the Coast Guard is concerned,

by the Department of Transportation) for

the ‘‘primary purpose’’ of training

members of the armed forces or meeting

a statutory requirement to educate or

train federal, state, or local civilian law

enforcement officials pursuant to 10

U.S.C. chapter 18. This includes

military academies, military programs

that provide drug traffic prevention

training to non-military law

enforcement agencies, Department of

Defense foreign language training and

survival schools for non-military law

enforcement agencies, and military

training to non-military law

enforcement agencies in the operation

and maintenance of equipment used in

the detection, monitoring, aerial

reconnaissance, and communication

intercepts of illegal drug trafficking.

Members of the armed forces,

including students at military

academies, are, however, protected from

certain forms of discrimination pursuant

to regulations currently enforced by the

Department of Defense and individual

service branches. See, e.g., 32 CFR part

51, ‘‘Department of Defense Military

Equal Opportunity Program,’’ and 32

CFR part 56, ‘‘Nondiscrimination on the

basis of Handicap in Programs and

Activities Assisted or Conducted by

Department of Defense.’’ In addition,

section 3–301 of Executive Order 13160

specifically provides that the

Department of Defense shall develop

procedures to protect the rights of, and

to provide redress to, civilians involved

in Department of Defense federally

conducted military education and

training programs if such civilians are

not otherwise protected by existing

federal law from discrimination on the

basis of race, sex, color, national origin,

disability, religion, age, sexual

orientation, or status as a parent.

Finally, it is important to emphasize

that this exemption does not apply to

the Department of Defense Dependent

Schools and Department of Defense

Domestic Dependent Elementary and

Secondary Schools. These schools must

comply with the Executive Order and

with all applicable legal principles set

forth in this Guidance Document.

Affirmative Action

Any otherwise lawful affirmative

action plan or program is exempt from

coverage under the Executive Order.

Pursuant to section 3–302, the Executive

Order ‘‘does not apply to, affect,

interfere with, or modify the operation

of any otherwise lawful affirmative

action plan or program.’’

Programs Established Consistent With

Federal Law

Section 3–303 of the Executive Order

provides that an individual shall not be

deemed subject to discrimination by

virtue of his or her ‘‘exclusion from the

benefits of a program established

consistent with federal law or limited by

federal law to individuals of a particular

race, sex, color, disability, national

origin, age, religion, sexual orientation,

or status as a parent different from his

or her own.’’ For example, pursuant to

25 CFR §§ 31.1 and 31.3, education or

training programs or activities

conducted by the Department of

Interior’s Bureau of Indian Affairs are,

subject to a few exceptions, limited to

Native American students ‘‘of onefourth or more degree of Indian blood.’’

Bureau of Indian Affairs Programs

Section 3–304 of the Executive Order

exempts from coverage any ceremonial

or similar education or training program

or activity of a school conducted by the

Department of Interior’s Bureau of

5400 Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices

2Such selection decisions might, however, be

covered by other civil rights statutes, including

Title VI of the Civil Rights Act of 1964, as amended,

and Title IX of the Education Amendments of 1972,

as amended.

3Throughout the remainder of this document, the

term ‘‘protected status’’ may be used to refer

generally to the nine protected characteristics

which are the subject of this Executive Order: race,

sex, color, national origin, disability, religion, age,

sexual orientation, and status as a parent.

Indian Affairs, provided such program

is ‘‘culturally relevant’’ to the children

represented in the school. The

Executive Order defines ‘‘culturally

relevant’’ as any class, program, or

activity that is ‘‘fundamental’’ to a

tribe’s ‘‘culture, customs, traditions,

heritage, or religion.’’ For example,

certain educational classes involving

traditional Native American dance

instruction may be ‘‘culturally relevant’’

to the children represented in the school

and therefore exempt from coverage

under the Executive Order. In making

determinations as to whether classes,

programs, or activities are ‘‘culturally

relevant,’’ substantial deference shall be

given to the views of the relevant tribes.

Selections of Foreign Nationals and

Selections Made Outside the Executive

Branch

Section 3–305 provides an exemption

for selections of foreign nationals based

on national origin if the selections

pertain to participation in covered

education programs or activities that

‘‘primarily concern national security or

foreign policy matters.’’ Thus, for

example, the Executive Order would not

cover the selection of participants, on

the basis of national origin, for the

Department of State’s Antiterrorism

Assistance training programs if the

primary mission of these programs is to

train foreign nationals in deterring and

managing terrorist threats.

Section 3–305 further provides an

exemption for ‘‘selections or other

decisions made by entities outside the

executive branch.’’ For example, if a

local school district selects students to

participate in a federally conducted

education program, the selection

decisions of the local school district

would not be subject to Executive Order

13160 as they represent selection

decisions made by an entity outside the

executive branch.2 However, the

students selected for participation in the

federally conducted education program

would be protected from discrimination

under Executive Order 13160 during the

duration of their participation in the

federally education conducted program.

In addition, section 3–305 provides

that it ‘‘shall be the policy of the

executive branch that education or

training programs or activities shall not

be available to entities that select

persons for participation in violation of

Federal or State law.’’ Thus, if a

company responsible for selecting

employees to participate in a federally

conducted education program were to

refuse to consider selecting members of

a particular race in violation of Title VII

of the Civil Rights Act of 1964, as

amended, executive departments

should, as a matter of policy, refrain

from making their educational programs

available to such a company.

Age-Based Admissions

Section 3–306 provides an exemption

for age-based admissions to federally

conducted education and training

programs if such programs have

‘‘traditionally been age-specific’’ or

‘‘must be age-limited for reasons related

to health or national security.’’ See

Section XI of this Guidance Document

for further information regarding these

age-related exemptions.

Final Determinations Regarding

Coverage and Exemptions

As a general matter, Executive Order

13160 will apply to all federally

conducted education and training

programs or activities not subject to a

specific exemption set forth in Section

3 of the Executive Order. Executive

departments or agencies and individuals

with questions regarding whether a

particular program or activity is subject

to Executive Order 13160 should

contact the Department of Justice’s Civil

Rights Division.

Pursuant to section 2–203 of the

Executive Order, the Attorney General is

authorized to make final determinations

as to whether a given program falls

within the scope of covered education

and training programs under section 2–

202 or is excluded from coverage under

section 3. See Section XIV(C),

‘‘Administrative Enforcement,’’ for

further information pertaining to

applicable procedures for requesting a

final determination from the Attorney

General regarding coverage of a

particular program.

IV. Applicable Legal Principles

Executive Order 13160 requires

executive departments and agencies to

ensure nondiscrimination on the basis

of race, sex, color, national origin,

disability, religion, age, sexual

orientation, and status as a parent in all

federally conducted education and

training programs. In order to comply

with the antidiscrimination mandates of

this Executive Order, agencies must

ensure that individuals involved in

federally conducted education and

training programs and activities are not

subjected to discrimination on the basis

of any one of these protected

characteristics. The most common forms

of discrimination prohibited by the

Executive Order are discussed below.

Disparate Treatment

Under Executive Order 13160, all

individuals involved in federally

conducted education or training

programs or activities must be treated

equally and not be subjected to

discrimination on the basis of race, sex,

color, national origin, disability,

religion, age, sexual orientation, or

status as a parent. In order to comply

with the Executive Order, all federal

agencies that provide education or

training programs or activities must

ensure that individuals are not

subjected to unjustified disparate

treatment based on a protected status.3

Examples of disparate treatment may

include, but are not limited to:

• Selecting or failing to select an

individual because of his or her

protected status.

• Denying an individual any aid,

benefit, or service offered in connection

with a federally conducted education

program because of his or her protected

status.

• Failing to provide or allocate aid,

benefits, or services as a result of an

individual’s protected status.

• Promoting or failing to promote an

individual because of his or her

protected status.

• Giving a positive or negative

performance evaluation to an individual

because of his or her protected status.

• Segregating an individual because

of his or her protected status.

• Assigning an individual to a

particular education or training program

or activity, or a particular project,

because of his or her protected status.

• Treating an individual less

favorably with respect to the terms,

conditions, or privileges of an education

or training program or activity because

of his or her protected status.

In addition to prohibiting individual

instances of unjustified disparate

treatment, the Executive Order also

prohibits federal agencies from engaging

in a ‘‘pattern or practice’’ of unlawful

discrimination. Moreover, federal

agencies may not rely on policies or

practices that explicitly classify

individuals on the basis of a protected

characteristic absent a lawful

justification for the use of such a

classification.

It is important to note, however, that,

under certain circumstances,

compliance with the Executive Order

may permit federal agencies to treat

Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices 5401

4Of course, it is also true that not every principle

will be applicable to every protected basis. For

example, only certain protected characteristics

trigger a reasonable accommodation requirement.

Individuals or agencies with specific questions

regarding the Executive Order’s antidiscrimination

provisions should contract the Department of

Justice’s civil Rights Division.

5All of the examples of discriminatory conduct

set forth in this Guidance Document are

hypothetical and are not intended to suggest that

any federal agency actually engages in such

discriminatory practices or necessarily even

operates such an educational program.

individuals differently on the basis of a

protected characteristic. For example,

under certain limited circumstances,

agencies may legitimately treat

individuals differently on the basis of

sex if sex is a bona fide occupational

qualification (BFOQ). Similarly,

remedial situations may justify

differential treatment. Moreover, in

educational environments, narrowlytailored measures designed to promote

the educational benefits of diversity

may lawfully treat individuals

differently on the basis of a protected

characteristic.

In some cases, the Executive Order

may even require federal agencies to

treat individuals differently in order to

avoid discriminating against an

individual on the basis of a protected

characteristic. For example, the

prohibition on religious discrimination

may require an agency to provide an

individual with a reasonable

accommodation for religious practices

as discussed in section X of this

Guidance Document. Similarly, under

many circumstances, federal agencies

have an obligation to provide reasonable

accommodations for individuals with

disabilities. See Section IX of this

Guidance Document. As such, the

examples of disparate treatment

enumerated above are designed merely

to illustrate the types of conduct

generally prohibited by this Executive

Order and agencies must, of course,

evaluate individual claims of disparate

treatment on a case-by-case basis.

Hostile Environment

Pursuant to Executive Order 13160, a

federal agency that provides education

or training programs or activities must

maintain a learning environment that is

free of discrimination on the basis of

race, sex, color, national origin,

disability, religion, age, sexual

orientation, and status as a parent.

• Federal agencies must ensure that

the learning environment is free of

harassment that is so severe, persistent,

or pervasive that it alters the conditions

of the federally conducted education or

training program or activity for a

participant on the basis of a protected

status. Federal agencies should ensure

that no individual is subject to a hostile

environment that effectively denies or

limits equal access to (e.g., negatively

affects an individual’s participation or

performance in) educational or training

opportunities and benefits based on his

or her protected status.

• Federal agencies should be aware

that the sort of harassment that can

create a hostile environment, when it is

sufficiently severe, persistent, or

pervasive, may take many forms

including: slurs, epithets, jokes,

cartoons, unwelcome advances, and

other verbal or physical derogatory

conduct that targets individuals on the

basis of a protected status. Federal

agencies should further be aware that

hostile environments may be created by

supervisors, instructors, administrators,

other officials, or peers.

Disparate Impact

As a general matter, federally

conducted education and training

programs and activities may not utilize

policies, procedures, criteria, or other

methods of administration which,

although facially neutral, have a

disproportionate and adverse effect on

certain individuals on the basis of a

protected characteristic, unless:

(1) There is an educational or

business necessity for the policy,

procedure, criteria, or method of

administration; and

(2) There are no equally effective

alternative practices that would result in

less adverse impact.

Retaliation

Federal agencies that operate

education and training programs may

not retaliate against any individual

because he or she has raised concerns,

reported claims, or filed complaints

alleging discrimination. Federal

agencies are similarly prohibited from

retaliating against any individual who

has testified, assisted, or participated in

any manner in an investigation or other

proceeding raising claims of

discrimination.

Prohibited retaliation may take many

forms including, but not limited to,

intimidation, threats, coercion,

harassment, discrimination, and adverse

actions (e.g., poor grades or performance

evaluations) motivated by retaliatory

purpose. Federal agencies must ensure

that no individual is subject to any form

of retaliation regardless of the merits (or

lack thereof) of any underlying claim.

Specific Principles and Examples

The following sections address more

specific applicable legal principles and

examples of discriminatory conduct

related to each of the nine protected

bases covered by the Executive Order. It

is important to note, however, that each

of the following sections is intended

merely to highlight certain specific

forms of prohibited discrimination. The

failure to include a particular legal

principle (or a particular example of

prohibited conduct) in one section of

this Guidance Document should in no

way be interpreted to mean that the

legal principle (or prohibited conduct)

is not covered with respect to another

protected basis. Rather, all sections of

this Guidance Document should be read

in conjunction with each other to

provide a fuller picture of the breadth

and application of the Executive Order’s

antidiscrimination prohibitions.4

V. Discrimination on the Basis of Race

Federal agencies must ensure that no

individual is discriminated against on

the basis of his or her race in any

federally conducted education or

training program or activity.

• Federal agencies must ensure that

all individuals are treated equally

without regard to race in any federally

conducted education or training

program or activity.

• Federal agencies may not utilize

policies, procedures, or methods of

administration which, although facially

neutral, have a disproportionate and

adverse effect on participants or

applicants on the basis of their race,

unless there is an educational or

business necessity for the use of such

policies and there are no equally

effective alternative practices that

would result in less of a

disproportionate impact.

• Federal agencies may not base any

decisions regarding individuals in

federally conducted education or

training programs on race-based

stereotypes or assumptions regarding

interests, competency levels, or

expectations of success.

• Federal agencies must take steps to

ensure that no federally conducted

education or training program takes

place in an environment that is

intimidating, abusive, offensive, or

hostile on the basis of race.

Examples 5 of Prohibited Conduct:

• A federal law enforcement agency

conducts an anti-terrorist training program in

which it groups participants in various

teams. Although the instructor generally

makes random assignments for this exercise,

he states that he has decided to assign all of

the African-American participants to a single

team because he believes that AfricanAmericans work most effectively with

members of their own race. The instructor’s

conduct violates the Executive Order.

• The Department of Justice offers an

advanced prosecutorial course for its

5402 Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices

6Further information on the application of these

nondiscrimination principles to athletic programs

in educational institutions may be obtained by

consulting Guidance Documents developed by the

Department of Education’s Office for Civil Rights,

including Policy Interpretation—Title IX and

Intercollegiate Athletics, 45 CFR part 26 (1979);

Equal Opportunity in Intercollegiate Athletics:

Requirements under Title IX of the Education

Amendments of 1972, 34 CFR part 106;

Clarification of Intercollegiate Athletics Policy

Guidance: The Three-Part Test (January 16, 1996);

and various other pamphlets, memoranda, and

documents that may be found on the Department

of Education’s website at www.ed.gov./offices/

OCR/ocrprod.html.

attorneys at the Department’s National

Advocacy Center in Columbia, South

Carolina. Due to the high demand for this

course, the limited number of openings

available, and the difficulty the Department

has had in determining which candidates

should be selected, the Department decides

to require candidates to take an aptitude test

and to select candidates in descending rank

order of their test scores. However, the test

results in disparate impact upon members of

a particular race. Further, the Department

lacks evidence that the test is valid; namely,

that it predicts success in the course or even

that it is necessary to pass the test in order

to satisfactorily complete the course.

Accordingly, the Department’s use of this test

violates the Executive Order.

VI. Discrimination on the Basis of Sex

Federal agencies must ensure that no

individual is discriminated against on

the basis of sex in any federally

conducted education or training

program or activity.

• No executive agency may admit,

refuse to admit, promote, refuse to

promote, or otherwise favor or disfavor,

a participant or prospective participant

in a federally conducted education

program on the basis of sex.

• An agency may not impose,

explicitly or implicitly, stricter

admission or completion requirements

for one sex as compared to the other.

• Federal agencies operating

education or training programs may not

utilize policies, procedures, or methods

of administration which, although

facially neutral, have a disproportionate

and adverse effect on participants or

applicants on the basis of sex unless

there is an educational or business

necessity for the use of such policies

and there are no equally effective

alternative practices that would result in

less of an impact on the basis of sex.

• Federal agencies should ensure that

no individual is subjected to genderbased harassment, which may include

harassment based on sex or sexstereotyping, in any federally conducted

education or training program. Genderbased harassment may be based upon

stereotypical notions regarding how

persons of each gender should act or

look.

• Discrimination on the basis of sex

includes discrimination on the basis of

pregnancy. Federal agencies must

ensure that no woman is discriminated

against on the basis of pregnancy,

childbirth, false pregnancy, termination

of pregnancy, or recovery therefrom, in

any education or training program or

activity.

Examples of prohibited conduct:

• The Director of Athletics at a Department

of Defense School for dependent children of

military personnel decides to allocate all of

his annual athletics budget to male sports

because he does not believe that female

students need or want the same quality and

variety of athletic services as males. Despite

repeated requests from female students for a

variety of programs and services, the Director

refuses to consider the provision of any

funding for co-ed or female sports. The

Director’s conduct would violate the

Executive Order.6

• The Federal Bureau of Investigation

conducts a firearms training program for state

and local officials. The admissions director

refuses to admit women because he believes

that only men should be permitted to train

for dangerous jobs. The director’s refusal to

consider women for participation in the

program would violate the Executive Order.

• The Department of Health and Human

Services conducts a nurses’ training program

on childhood vaccinations. One of the

instructors requires the male participants to

attend a seminar on infant care, but does not

require the female students to attend the

same seminar because she assumes that

female students already possess such skills.

The instructor’s conduct would violate the

Executive Order.

• A physical fitness instructor at the

Federal Bureau of Prisons refuses to allow a

pregnant inmate to participate in the physical

fitness training program because he believes

that pregnant women should not be

physically active. Although the prison has a

policy of permitting inmates with temporary

disabilities to participate in physical fitness

programs upon receipt of approval from a

physician, the instructor refuses to consider

a letter from the inmate’s doctor explaining

that physical activities pose no health risk to

her. The instructor’s decision to exclude the

woman would violate the Executive Order.

• The Department of Labor conducts a

week-long training seminar during which

participants are evaluated for their

approaches to management. Future

promotion decisions are based on these

evaluations. One of the evaluators gives high

ratings to men who exhibit an aggressive

interpersonal style, but deducts points for

women who exhibit the same characteristics.

The evaluator’s judgments are based on sexstereotypes and thus violate the Executive

Order.

• The Department of Justice operates an

advanced law enforcement training course on

an annual basis for ten individuals. During

one session of the course, nine of the ten

participants are male. The only woman

enrolled in the course is continually taunted

and hazed by her male peers who do not

believe that women are capable of serving as

law enforcement officers. The male instructor

not only fails to take appropriate corrective

action, but joins the male students in

subjecting the woman to a barrage of

derogatory epithets. The gender-based

harassment to which the woman is subjected

violates the Executive Order.

Sexual Harassment

The Executive Order’s prohibition on

sex discrimination requires federal

agencies to ensure that no individual is

subjected to sexual harassment in any

federally conducted education or

training program.

• Sexual harassment entails

unwanted or unwelcome sexual conduct

including sexual advances, requests for

sexual favors, or other verbal,

nonverbal, or physical conduct of a

sexual nature.

• Federal agencies must ensure that

no individual involved in a federally

conducted education or training

program is subjected to any form of

sexual harassment.

• No instructor, supervisor,

administrator, or other official involved

in a federally conducted education

program may (1) Explicitly or implicitly

make submission to sexual conduct a

term or condition of an individual’s

participation in an education program,

or (2) use submission to or rejection of

such conduct as the basis for any

decision affecting an individual. Sexual

harassment of this type violates the

Executive Order whether an individual

resists and suffers the threatened harm

or submits and thus avoids the

threatened harm.

• Federal agencies must ensure that

no individual involved in a federally

conducted education or training

program is subjected to a hostile

environment on the basis of sex. An

impermissible hostile environment may

consist of unwelcome sexual conduct

that is sufficiently severe, persistent, or

pervasive so as to (1) Limit an

individual’s ability to participate in, or

benefit from, an education or training

program or activity, or (2) create a

hostile or abusive educational

environment. Hostile environments may

be created by supervisors, instructors,

administrators, other officials, or peers.

Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices 5403

7Further guidance on these principles and agency

obligations with respect to LEP issues may be found

by consulting Executive Order 13166, ‘‘Improving

Access to Services for Persons with Limited English

Proficiency,’’ 65 FR 50121 (August 16, 2000), and

the Department of Justice’s Policy Document,

‘‘Enforcement of Title VI of the Civil Rights Act of

1964—National Origin Discrimination Against

Persons with Limited English Proficiency.’’ 65 FR

50123 (August 16, 2000).

Examples of prohibited conduct:

• A male student attending a high school

operated by the Bureau of Indian Affairs is

told by a female teacher that he will fail

algebra if he does not accompany her on a

date. The student refuses the teacher’s

request and receives a failing grade as a

result. The teacher’s conduct violates the

Executive Order.

• The Federal Emergency Management

Agency conducts emergency preparedness

training for local firefighters. A training

supervisor refuses to certify that a trainee has

completed the program until she

accompanies him on a date. Fearing that she

will lose her job if she is not certified, the

trainee acquiesces to the supervisor’s

demand. The supervisor’s behavior

constitutes sexual harassment and violates

the Executive Order.

• A volunteer student intern at the

Department of Veterans Affairs has made

repeated unwelcome sexual gestures of a

graphic and physical nature toward a fellow

intern. On several occasions, the intern has

made such gestures while following the

victim and threatening to ‘‘get her alone.’’

The victim no longer feels that she can be by

herself at the office. This conduct has been

both severe and pervasive and has created a

hostile educational environment. The intern

tells her supervisor and the Senior Managers

who oversee the program, but they refuse to

investigate or otherwise stop or prevent the

conduct. The failure to investigate and/or

take appropriate corrective action violates the

Executive Order.

VII. Discrimination on the Basis of

Color

Federal agencies must ensure that no

individual is discriminated against on

the basis of color in any education or

training program or activity.

• Discrimination on the basis of color

may include, but is not limited to,

discrimination on the basis of the

appearance of an individual’s skin tone,

racial complexion, pigmentation, or

hue.

• A federal agency may not, on the

basis of color, admit, refuse to admit,

promote, refuse to promote, or

otherwise favor or disfavor, a

participant or prospective participant in

an education or training program or

activity.

• A federal agency may not use color

as a proxy for determining an

individual’s race or national origin.

• Federal agencies must ensure that

participants in education or training

programs or activities are not subjected

to harassment, in the form of colorbased animus, bias, hostility, stereotype,

ridicule or insult, whether by

instructors or fellow participants, that is

sufficiently severe, persistent, or

pervasive to create a hostile

environment.

• Federal agencies may not utilize

policies, procedures, criteria or methods

of administration which, although

facially neutral, have a disproportionate

and adverse impact on the basis of

color, unless there is an educational or

business necessity for the use of such

policies and there are no equally

effective alternative practices that

would result in less of an impact on the

basis of color.

Examples of prohibited conduct:

• An executive agency conducts a

vocational training program that includes an

advanced course in media and broadcast

education. The only criteria for admission is

that the individual demonstrate a long-term

interest in the field. After conducting

interviews, however, a member of the

admissions committee rejects an applicant

with dark skin solely because she has seen

statistical data that demonstrates that

individuals with dark skin experience greater

difficulty in finding permanent employment

in these fields. The admissions committee

member’s conduct violates the Executive

Order.

• A federal agency is planning an

education seminar to address the Native

American experience during the 20th

Century. The program coordinator receives

applications from numerous Native

Americans who wish to participate as

panelists. The program coordinator refuses to

select any light-skinned applicants because

he believes that such individuals do not

appear to be ‘‘Native American’’ and thus

cannot effectively address this topic. The

coordinator’s conduct violates the Executive

Order.

VIII. Discrimination on the Basis of

National Origin

Federal agencies must ensure that no

individual is discriminated against on

the basis of national origin in any

federally conducted education or

training program or activity.

• Discrimination on the basis of

national origin may include

discrimination based upon an

individual’s country of birth, ancestry,

or accent.

• Federal agencies must ensure that

individuals are not subjected to

disparate treatment on the basis of

national origin.

• Federal agencies may not utilize

policies, procedures, criteria or methods

of administration which, although

facially neutral, have a disproportionate

and adverse impact on the basis of

national origin unless there is an

educational or business necessity for the

use of such policies and there are no

equally effective alternative practices

that would result in less of an impact on

the basis of national origin.

• Participants in a federally

conducted education or training

program or activity must not be

subjected to a hostile environment

based upon national origin.

• Exempt from coverage under this

Executive Order are selections based on

national origin of foreign nationals to

participate in covered education or

training programs which primarily

concern national security or foreign

policy matters.

Examples of Prohibited Conduct:

• The Department of Health and Human

Services decides to hold a conference

focused on training community groups on

Latino health issues. A non-Latino

representative from one of these community

groups wishes to attend the conference, but

the Conference Coordinator denies the

request because the individual is not Latino.

The Conference Coordinator’s conduct would

violate the Executive Order.

• An agency plans to hold a training

session in a large city. The conference is

designed to help low-income and minority

individuals across the city start their own

small businesses. The agency decides to

advertise the training session by posting

announcements in all low-income areas of

the city. An agency coordinator, however,

decides not to post announcements in the

Chinatown section, even though the area has

a high population of low income and

minority individuals, because the

coordinator does not think people from that

area will be interested and/or will

understand the English-language training.

The coordinator’s decision would violate the

Executive Order.

• A federal agency is conducting an

educational program regarding citizenship

and civic duty. An employee applies to be a

member of the speakers’ panel during the

program, but her supervisor refuses to select

her because he believes that she has a foreign

accent which would undermine her

credibility with the audience. The

supervisor’s conduct violates the Executive

Order.

Limited English Proficiency

Under certain circumstances, a federal

agency’s failure to provide language

assistance to an individual whose

primary language is not English and

who has a limited ability to read, write,

speak, or understand English may

constitute national origin

discrimination. Agency obligations with

respect to such individuals who are

limited English proficient (LEP) are

discussed below.7

• Agencies have an obligation to take

reasonable steps to ensure that LEP

5404 Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices

8See, for example, Identification of

Discrimination and Denial of Services on the Basis

of National Origin (May 1970), 35 FR 11595; ‘‘The

Office for Civil Rights Title VI Language Minority

Compliance Procedures’’ (Dec. 3, 1985); and Policy

Updates on Schools’ Obligations Toward National

Origin Minority Students with Limited-English

Proficiency (LEP) (Sept. 27, 1991).

individuals have meaningful access to

federally conducted education and

training programs and activities.

• Agencies must determine what

constitutes ‘‘reasonable steps’’ by

considering a number of factors

including: (1) the number or proportion

of LEP persons in the eligible

population to be served by the

education or training program or

activity; (2) the frequency with which

LEP individuals come into contact with

the program or activity; (3) the

importance of the service provided by

the program or activity; and (4) the

resources available to the agency.

• If the federally conducted education

program is an elementary or secondary

school (e.g., Department of Defense

Dependent Schools or schools operated

by the Department of Interior, Bureau of

Indian Affairs), the executive

department or agency should comply

with the Department of Education’s

guidance on the provision of language

services to elementary and secondary

education LEP students.8

Examples of Prohibited Conduct:

• A prison operated by the Bureau of

Prisons has a very large proportion of adult

LEP inmates who speak the same native

language. The prison has a drug and alcohol

rehabilitation program for inmates who have

drug or alcohol addictions. Due to the size of

this single-language speaking LEP

population, the fact that this population of

inmates has the same percentage of drug and

alcohol addictions as the rest of the inmate

population, and the importance of the

program, the prison’s failure to provide this

group of LEP inmates with access to the

program (such as a separate class in their

native language or a competent interpreter)

would violate the Executive Order.

• Military parents have adopted a child

who is limited English proficient. They

decide to enroll her in the federally

conducted K–12 school for children of

military personnel. The school’s refusal to

consider providing the LEP child with any

services to overcome language barriers would

constitute a violation of the Executive Order.

IX. Discrimination on the Basis of

Disability

Federal agencies must ensure that no

individual is discriminated against on

the basis of disability in any federally

conducted education or training

program or activity.

• Section 504 of the Rehabilitation

Act already prohibits discrimination on

the basis of disability in all federally

conducted education and training

programs as Section 504 applies to all

federally conducted activities.

Accordingly, executive departments and

agencies may comply with the

Executive Order by ensuring that all of

their education and training programs

are operated in accordance with their

Section 504 regulations governing

federally conducted activities.

• An individual with a disability

refers to any person who has a physical

or mental impairment that substantially

limits one or more major life activities,

has a record of such an impairment, or

is regarded as having such an

impairment. Major life activities include

walking, seeing, hearing, speaking,

breathing, learning, performing manual

tasks, caring for oneself, working,

sitting, standing, lifting, and reading.

• Federal agencies must ensure that

no otherwise qualified individual, on

the basis of disability, is excluded from

participation in, denied the benefits of,

or subjected to discrimination in any

federally conducted education or

training program or activity.

• A qualified individual with a

disability is any person who, with or

without reasonable accommodation, can

meet the essential eligibility

requirements for involvement in the

education or training program.

• Agencies must ensure that federally

conducted education or training

programs are readily accessible to

qualified individuals with disabilities.

In order to ensure accessibility, an

agency may:

(i) Relocate the education or training

program or activity to an accessible

facility;

(ii) Provide the aid, benefit, or service

in another manner; or

(iii) Make modifications to the

building or facility itself.

• In determining how to achieve

accessibility, agencies should attempt to

provide aid, benefits, or services in the

most integrated setting possible.

Examples of prohibited conduct:

• The National Endowment for the Arts

conducts an education program on art

history. The instructor has a limited number

of tickets to a new movie regarding French

impressionist works and decides to draw

names randomly to decide which students

can attend. When the instructor draws the

name of a visually impaired participant, he

reassigns the ticket because he believes that

the visually impaired individual would not

be able to enjoy the movie as much as a nonvisually impaired participant. The

instructor’s conduct would violate the

Executive Order.

• The Office of Government Ethics holds

an ethics briefing for another agency’s ethics

officials in a building that has three stairs

leading up the main entrance. There is no

ramp, lift, or alternative accessible entrance.

Several participants use wheelchairs and,

thus, cannot get into the building. The

instructor tells the participants that they will

not be able to attend and refuses to relocate

the briefing to an available and accessible

facility, despite the fact that to do so would

not constitute an undue burden. The

instructor’s refusal to relocate the briefing

would violate the Executive Order.

Reasonable Accommodation

Agencies have an obligation to

provide reasonable accommodation to

the known physical or mental

limitations of an otherwise qualified

individual with a disability, unless the

agency can demonstrate that the

accommodation would impose an

undue hardship.

• Agencies must furnish appropriate

auxiliary aids and services when

necessary to afford a qualified

individual with a disability an equal

opportunity to participate in a federally

conducted education or training

program or activity.

• Agencies must afford an individual

with a disability an opportunity to

request the auxiliary aid or service of

his or her choice, and should honor that

choice unless another effective aid or

service is available.

• An agency may not charge an

individual with a disability for the use

of an auxiliary aid or service.

• The obligation to provide

reasonable accommodations extends

only to individuals with disabilities; an

agency’s failure to provide similar

accommodations for individuals

without disabilities does not constitute

unlawful discrimination.

Examples of prohibited conduct:

• The Department of Justice conducts

training seminars on compliance with civil

rights laws for employees from other

agencies. A prospective participant who is

hearing impaired requests a sign language

interpreter for an upcoming seminar.

Although the agency employs a full-time sign

language interpreter who is available to

attend the seminar in question, the training

coordinator refuses to enlist the interpreter’s

services and informs the participant that the

agency will provide a video with closedcaptioning that will be available ten days

after the seminar is over. The coordinator’s

conduct would violate the Executive Order.

• A visually impaired student attending a

high school operated by the Bureau of Indian

Affairs requests that his class handouts be

provided in Braille or on audio cassette. The

principal refuses to translate any materials

and urges that the student transfer to a

private high school where such materials are

more readily available. The principal’s

conduct would violate the Executive Order.

Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices 5405

9See Equal Employment Opportunity

Commission ‘‘Guidelines On Discrimination

Because Of Religion,’’ 29 CFR 1605.1.

X. Discrimination on the Basis of

Religion

Federal agencies must ensure that no

individual is discriminated against on

the basis of religion in any education or

training program or activity.

• Discrimination on the basis of

religion may include discrimination on

the basis of an individual’s religion (or

lack thereof), religious beliefs, religious

expression, or religious practices.

Religious practices may include moral

or ethical beliefs as to what is right and

wrong which are sincerely held with the

strength of traditional religious views.9

• Discrimination on the basis of

religion also may include

discrimination on the basis of an

individual’s relationship with a person

of a particular religion or an

individual’s affiliation with a group,

including an employee or student

organization, that is associated with

religious issues or whose membership is

composed largely of people of a

particular religion.

• No executive agency may admit,

refuse to admit, promote, refuse to

promote, or otherwise favor or disfavor,

a participant or prospective participant

in a federally conducted education

program because of his or her religion

(or lack thereof), religious beliefs,

religious expression, or religious

practices.

• An agency may not impose,

explicitly or implicitly, stricter

admission or completion requirements

for a particular religious group or an

individual who espouses particular

religious beliefs.

• Individuals involved in a federally

conducted education program may not

be subjected to a hostile environment in

the form of religiously-based

discriminatory intimidation, or

pervasive or severe religious abuse,

ridicule or insult, whether by

instructors or fellow participants. A

hostile environment is not created,

however, simply by virtue of religious

expression with which some

participants might disagree.

Examples of prohibited conduct:

• An instructor in a Department of Justice

computer training course requires a

participant who is an atheist to complete five

extra hours of training because that

participant does not share the instructor’s

religious beliefs. The instructor’s conduct

would violate the Executive Order.

• A group of participants, attending a

federally conducted training course, share a

common faith. This group engages in a

pattern of verbal attacks on other participants

who do not share their religious views. These

attacks occur repeatedly and are both severe

and pervasive, creating a hostile educational

environment. The agency is aware of this

situation but fails to take effective corrective

action. The agency’s failure to take effective

corrective action would violate the Executive

Order.

Reasonable Accommodation of

Religious Practices

The Executive Order’s prohibition on

religious discrimination also includes

an obligation on the part of federal

agencies to provide reasonable

accommodation for religious practices.

If an individual notifies an executive

department or agency of his or her need

for a religious accommodation with

respect to a federally conducted

education program, the agency has an

obligation to reasonably accommodate

the individual’s religious observances or

practices.

• Reasonable accommodations for

religious observances or practices are

those that do not impose an undue

hardship. Though an agency need not

make an accommodation that will result

in more than a de minimis burden to the

agency, the cost or other hardship

nevertheless must be real rather than

speculative or hypothetical. An

accommodation should be made unless:

(1) It would create an actual cost for the

agency or other participants, (2) it

would cause an actual disruption in the

conduct of the education program, or (3)

such accommodation is otherwise

barred by law.

• Individuals involved in federally

conducted education programs must be

permitted to wear religious clothing,

jewelry, or other accessories, if wearing

such attire is part of an individual’s

religious practice or expression, so long

as the wearing of such attire does not

unduly interfere with the conduct of the

education program.

• Agencies should be flexible in the

scheduling of education and training

courses when participants request

scheduling changes in order to observe

religious traditions, such as the Sabbath

or particular holidays, unless to do so

would result in more than a de minimis

burden.

• Agencies should attempt to honor

requests for alternative work

assignments when completion of a

particular work assignment would

contravene an individual’s religious

practices or beliefs.

Examples of prohibited conduct:

• The National Aeronautics and Space

Administration conducts a space camp

program every Saturday and Sunday

morning, and participants are randomly

assigned to each session. The agency refuses

to even consider a Catholic youth group’s

request to be placed in the Saturday morning

program so that the group can participate

without missing Mass. The agency’s failure to

even consider providing this religious

accommodation would violate the Executive

Order.

• The Department of Interior requires its

national park service employees to wear

uniforms during public instruction, and

imposes sanctions for deviation from specific

guidelines. A Muslim employee wishes to

wear a head scarf or hijab during instruction,

but her supervisor refuses to consider her

request. The supervisor’s refusal to consider

the employee’s request would violate the

Executive Order.

XI. Discrimination on the Basis of Age

Federal agencies must ensure that no

individual is discriminated against on

the basis of age in any federally

conducted education or training

program or activity.

As a general matter, age may not be

used as a basis upon which to condition

the allocation of benefits within, or

qualification for, or participation in, a

federally conducted education or

training program or activity. More

specifically:

• Age distinctions may not be used to

exclude individuals from a program or

activity unless age is a bona fide

qualification for participation in the

program or activity, that is necessary to

the achievement of a programmatic

objective or necessary to the normal

operation of the program or activity.

• Although agencies may, under

certain circumstances, rely on age-based

distinctions because it is impracticable

to measure characteristics that are

necessary to the achievement of an

essential programmatic objective on an

individualized basis, age may not be

used as a proxy if it is not a

substantially accurate measure of those

characteristics.

• Age-based classifications may not

be used to achieve any objective that is

not essential to the achievement of a

statutory objective or the normal

operation of a program or activity.

Under certain circumstances,

however, agencies may legitimately use

age distinctions with respect to the

operation of federally conducted

education or training programs. For

example:

• Agencies may use age-based

admissions policies for education or

training programs that have traditionally

been age-specific.

• Agencies may use age-based

admissions policies for education or

training programs that must be agelimited for reasons related to health or

national security.

• Agencies may rely on age when

acting in accordance with laws designed

5406 Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices

to provide special benefits or assistance

to members of a particular age group,

such as children or the elderly.

Examples of Prohibited Conduct:

• An executive agency conducts an

education program through which it provides

computer science training for high school

graduates. The agency permits only

individuals under the age of 30 to apply for,

and participate in, the program. The agency’s

policy is based upon the belief that age can

be used as an acceptable proxy for measuring

an individual’s likely long-term commitment

to a career in computer science. The agency’s

policy would violate the Executive Order

because age is not an accurate or acceptable

measure of an individual’s likely

commitment to a long-term career in

computer science.

• An executive agency operates a business

development training program to train

entrepreneurs starting new and novel

businesses. The training program is only

available to individuals under the age of 50.

The agency claims that it uses this age

requirement to measure characteristics, such

as entrepreneurial ingenuity, that are

essential to an individual’s ability to start a

novel business. The agency’s conduct

violates the Executive Order because age is

not an accurate measure of entrepreneurial

ingenuity—a characteristic which may be

necessary to the achievement of an essential

programmatic objective, but which is

properly assessed on an individualized basis,

such as by reviewing applicant business

plans.

XII. Discrimination on the Basis of

Sexual Orientation

Federal agencies must ensure that no

individual is subjected to

discrimination on the basis of his or her

sexual orientation in any federally

conducted education or training

program or activity.

• ‘‘Sexual orientation’’ refers to

heterosexuality, homosexuality, or

bisexuality.

• Discrimination on the basis of

sexual orientation includes

discrimination on the basis of an

individual’s:

(i) Sexual orientation or perceived

sexual orientation;

(ii) Relationship with an individual of

a particular sexual orientation;

(iii) Affiliation with a group,

including an employee or student

organization, that is associated with

sexual orientation issues or whose

membership is composed largely of

people of a particular sexual orientation.

• Federal agencies must ensure that

all individuals involved in federally

conducted education or training

programs are treated without regard to

sexual orientation.

• Federal agencies must ensure that

no individual involved in a federally

conducted education program is

subjected to harassment based on his or

her sexual orientation. Sexual

orientation harassment may include

slurs, epithets, unwelcome sexual

advances, jokes, cartoons, or other

derogatory behaviors that target

individuals on the basis of sexual

orientation and that are sufficiently

severe, persistent, or pervasive to create

a hostile educational environment.

Examples of Prohibited Conduct:

• A teacher in a Bureau of Indian Affairs

federally conducted school is discharged on

the basis of her sexual orientation. The

discharge would violate the Executive Order.

• A student in a federally conducted

school is harassed by his fellow students as

a result of his perceived sexual orientation.

The harassment causes him severe emotional

distress and, as a result, his grades drop and

he is often absent from school. The

harassment creates a hostile educational

environment, and the student notifies his

teachers and the school principal. The failure

of his teachers and the principal to

investigate his claims and/or take appropriate

corrective action would violate the Executive

Order.

• A guidance counselor at a Department of

Defense high school for the dependent

children of military personnel refuses to

permit a homosexual student to attend a

training session on developing a career in

business. The guidance counselor advises the

student to consider a career as an interior

decorator or a chef because she believes these

professions are among the most suitable for

gay men. The guidance counselor’s conduct

would violate the Executive Order.

• The internship coordinator at a federal

agency refuses to select a heterosexual

student as a summer intern because the

student is being raised by two homosexual

men. The coordinator’s decision would

violate the Executive Order.

• A federal agency holds an annual

training retreat and invites the spouses or

significant others of participating employees

to accompany the group. However, when a

homosexual employee arrives at the retreat

with his partner, the retreat coordinator

refuses to allow his partner to attend. The

retreat coordinator’s conduct violates the

Executive Order.

XIII. Discrimination on the Basis of

Status as a Parent

Federal agencies must ensure that no

individual is discriminated against on

the basis of his or her status as a parent

in any federally conducted education or

training program or activity.

• ‘‘Status as a Parent’’ refers to the

status of any individual who, with

respect to an individual who is under

the age of 18 or who is 18 or older but

is incapable of self-care because of a

physical or mental disability, is:

(i) A biological parent;

(ii) An adoptive parent;

(iii) A foster parent;

(iv) A stepparent;

(v) A custodian of a legal ward;

(vi) In loco parentis over such an

individual; or

(vii) Actively seeking legal custody or

adoption of such an individual.

• The prohibition on discrimination

based on status as a parent is designed

to protect both men and women who

become fathers and mothers through

childbirth, foster parentage, adoption,

legal guardianship, or marriage.

• Federal agencies may not rely on an

individual’s status as a parent in

determining whether a person satisfies

any policy or criterion for selection or

admission to a federally conducted

education program.

• Federal agencies may not rely on an

individual’s status as a parent in

recruiting and/or selecting participants

and instructors for federally conducted

education programs.

• An individual may not be excluded

from, denied the benefits of, or

subjected to discrimination in any

federally conducted education program

as result of his or her perceived parental

responsibilities.

Examples of prohibited conduct:

• The Admissions Committee for a

summer training program operated by the

Department of Health and Human Services

refuses to admit mothers of young children

because the committee members believe

mothers should stay home and take care of

their children. The Admissions Committee’s

conduct violates the Executive Order.

• The head of the French Department at

the Department of Agriculture’s Graduate

Language Program twice passed over a single

father with custody of two young children for

promotion to a Senior Instructor position

because she believed that the father would

not be interested in a position with evening

and weekend obligations due to his parental

responsibilities. The failure to consider the

father for promotion based upon his status as

a parent violates the Executive Order.

• The Nuclear Regulatory Commission

does not recruit graduate students with

children for their Graduate Fellowship

Program because the agency believes that the

Graduate Fellowship Program is too rigorous

for students with parental responsibilities.

This recruitment practice constitutes

discrimination on the basis of status as a

parent and violates the Executive Order.

• An instructor for the VA Home Loan

Training Program at the Department of

Veterans Affairs is told by his supervisor

that, if he proceeds to become a foster parent,

he will not be eligible for a promotion to

Senior Instructor because the new position

will require too much travel. The instructor

becomes a foster parent and is passed over

for promotion as a result. The failure to

consider the instructor for promotion based

on his status as a foster parent violates the

Executive Order.

• The Department of Justice is conducting

a day-long training seminar for its employees

and is planning to offer the course on three

consecutive dates. Employees are assigned to

Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices 5407

10 In cases where a complaint raises claims under

both Executive Order 13160 and Executive Order

11478 (but does not raise statutory claims), the

appropriate complaint processing procedures will

depend upon whether the federal agency

conducting the education program has an existing

complaint process for handling claims filed under

Executive Order 11478. If a federal agency has

complaint procedures for claims filed under

Executive Order 11478, claims filed under both

Executive Order 13160 and Executive Order 11478

may be consolidated and adjudicated under

Executive Order 11478. If a federal agency does not

have a complaint procedure for claims arising

under Executive Order 11478, and a complaint

alleges a violation of Executive Order 13160 and

Executive Order 11478 (but does not raise any

statutory claims), the complaint should be

processed in accordance with the procedures for

Executive Order 13160 set forth below. If a

complainant raises claims under Executive Order

13160, Executive Order 11478, and an EEO statute,

the complaint should be consolidated and

adjudicated under the relevant EEO processes.

11Federal employees participating as members of

the general public in a federally conducted

education program will, of course, be subject to the

same enforcement procedures as outside

participants.

12For instance, the enforcement procedures set

forth in this Guidance Document may govern the

resolution of a complaint filed by an employee

involved in a training program conducted by a

federal agency other than the federal agency for

whom the employee works. For example, if an

employee of the Department of Justice participates

in a training course conducted by the Department

of Education, the employee may choose to file an

Executive Order 13160 claim directly against the

Department of Education if he or she chooses not

to, or is not able to, invoke existing EEO laws and

regulations at the Department of Justice.

dates alphabetically on the basis of their last

names. One of the employees requests to take

the training course on a different date as she

is scheduled to attend a parent-teacher

conference at her child’s school. Although

the training coordinator has honored other

employee requests to switch dates, he refuses

to grant the mother’s request because he

believes that she should prioritize work over

her parental responsibilities. The training

coordinator’s conduct violates the Executive

Order.

XIV. Administrative Enforcement

Section 4 provides for administrative

enforcement of the antidiscrimination

provisions of Executive Order 13160.

General guidelines for administrative

enforcement are discussed below.

Before turning to these guidelines,

however, it is important to address three

preliminary matters.

First, Executive Order 13160 covers

all individuals involved in federally

conducted education and training

programs. Although many such

individuals are likely to be members of

the general public, rather than federal

employees, there will, of course, be

many federal employees covered by the

Executive Order by virtue of their

employment-related participation in

federally conducted educational

programs. Such individuals, however,

are already protected under a number of

existing Equal Employment Opportunity

(EEO) laws, regulations, and Executive

Orders, including Title VII of the Civil

Rights Act of 1964 (Title VII) (race,

color, religion, sex, and national origin),

sections 501 and 504 of the

Rehabilitation Act (Sections 501 and

504) (disability), the Age Discrimination

in Employment Act (ADEA) (age), the

Equal Employment Opportunity

Commission’s Federal Sector Equal

Employment Opportunity Regulations,

29 CFR 1614, and Executive Order

11478, as amended, (race, color,

religion, sex, national origin, disability,

age, sexual orientation, and status as a

parent). Therefore, in order to promote

the consistent and effective enforcement

of equal employment opportunity

mandates for all federal employees, and

to preserve the integrity of statutorily

protected equal employment

opportunity rights, complaints filed

under both this Executive Order and

existing equal employment opportunity

laws should be consolidated and

adjudicated under the relevant equal

employment opportunity statutes (i.e.,

Title VII, sections 501/504, and/or the

ADEA).10 This approach will not only

provide a streamlined procedure for

resolving complaints, but will also

protect an aggrieved employee’s

opportunity to recover any monetary

damages that are available under the

EEO statutes but not under this

Executive Order.

As a practical matter, this means that

a federal employee seeking to file a

complaint under this Executive Order

must indicate whether the complaint is

related to his or her employment 11 and,

if so, whether he or she has filed any

other EEO claims arising out of the same

circumstances. If so, the complaint filed

under this Executive Order should be

transferred to the office handling the

related claim and the enforcement

procedures set forth below will be

deemed inapplicable. If a federal

employee chooses to proceed solely

under this Executive Order, the

enforcement procedures set forth below

will govern the disposition of his or her

complaint.12

If a federal employee indicates that he

or she has not filed any other EEO

claims at the time of filing a complaint

under this Executive Order, the

employee may nevertheless

subsequently elect to file a related claim

under Title VII, section 504, the ADEA,

or Executive Order 11478, provided the

employee follows the appropriate EEO

filing procedures and contacts an EEO

counselor and files a complaint within

the relevant statutory time limit. In such

cases, the employee should notify the

investigating office that he or she has

decided to contact an EEO counselor

and file a related EEO claim so that the

Executive Order 13160 complaint may

be transferred to the appropriate office

as provided for above. Federal agencies

must ensure that all federal employees

filing Executive Order 13160 complaints

have adequate notice that they should

advise the investigating office handling

the Executive Order 13160 complaint if

they decide to pursue their claims

through the EEO process.

Second, the enforcement procedures

set forth below are designed solely to

provide general guidance. Under

Section 5–502 of the Executive Order,

all executive departments and agencies

must establish procedures to receive

and review complaints within 90 days

of January 18, 2001. As all executive

departments and agencies already have

procedures in place for adjudicating

claims regarding federally conducted

programs under Section 504 of the

Rehabilitation Act, it is recommended

that agencies consider utilizing the same

investigative and adjudicative offices for

handling complaints under Executive

Order 13160. However, agencies are of

course free to develop different

procedures and to supplement or

modify the following enforcement

procedures as appropriate.

Third, after developing individual

procedures to receive and review

complaints, each executive department

and agency should prepare some sort of

outreach materials to ensure that all

individuals involved in federally

conducted education and training

programs are aware of Executive Order

13160 and are advised as to the proper

procedures for filing complaints. These

outreach materials should provide

individuals with specific information,

including, but not limited to, the general

antidiscrimination mandates of

Executive Order 13160, details

regarding how to obtain copies of this

Guidance Document, timelines for filing

complaints, the name(s) and address(es)

of the office(s) to which such

complaints should be sent, and specific

procedures established by the relevant

federal agency regarding the processing

of complaints.

All executive departments and

agencies should further ensure that

these outreach materials provide clear

instructions to federal employees

regarding their respective rights under

Executive Order 13160 and Title VII,

sections 501/504, the ADEA, and

Executive Order 11478. Specifically,

these outreach materials should clearly

state the differing timelines for filing

claims under the Executive Order and

5408 Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices

these three statutes, as well as the

availability (or unavailability) of

different remedies. As discussed above,

federal employees should also be clearly

advised that claims filed under both the

Executive Order and an equal

employment opportunity statute will be

adjudicated only under the relevant

statute (or under Executive Order 11478,

if an agency has existing procedures for

receiving such complaints).

The development of these outreach

materials should ensure that all

individuals receive adequate notice of

their rights under Executive Order

13160. These materials will also serve to

ensure that individuals participating in

federally conducted education and

training programs are properly advised

as to the appropriate procedures for

filing complaints. Finally, these

materials should assist in clarifying

questions federal employees may have

regarding the ramifications of filing a

complaint under Executive Order 13160

versus filing a complaint under Title

VII, sections 501/504, the ADEA, or

Executive Order 11478.

A. Definitions

For purposes of this Guidance

Document, the term—

Appropriate agency official means the

officer or officers within an executive

department or agency designated to

determine what, if any, disciplinary

action, remedial action, or corrective

action should be taken as a result of a

violation of the Executive Order.

Complete complaint means a written

statement that contains the

complainant’s name, address, and

phone number, describes the agency’s

alleged discriminatory action in

sufficient detail to inform the agency of

the nature and approximate date of the

alleged violation, and identifies whether

the complainant is an employee of the

agency alleged to have committed the

discrimination and whether the

complainant’s involvement in the

relevant education or training program

was related to his or her employment.

A complete complaint must be signed

by the complainant or by someone

authorized by the complainant to sign

on his or her behalf.

Investigating office means the office or

offices within an executive department

or agency that are designated to

investigate complaints regarding

violations of this Order or its

implementing rules, regulations,

policies, or guidance.

Respondent means the organizational

unit in which the alleged discrimination

occurred.

B. Filing a Complaint

Any individual who believes himself

or herself to be aggrieved by a violation

of Executive Order 13160 or its

implementing regulations, rules,

policies or guidance, including this

Guidance Document, may, personally or

through a representative, file a written

complaint with the agency that he or

she believes is in violation of this Order

or any of its implementing regulations,

rules, policies, or guidance. All written

complaints should be filed with the

appropriate Investigating Office as

designated by the relevant agency.

1. Complete Complaints

In order to be accepted by an agency’s

Investigating Office, all written

complaints must be ‘‘complete

complaints.’’ As defined above, a

complete complaint must include the

name, address, and phone number of

the complainant, must identify whether

the complainant is a federal employee

and whether the complainant’s

involvement in the relevant education

program was related to his or her

employment, and must describe the

alleged discriminatory conduct in

sufficient detail to inform the agency as

to the nature and approximate date of

the alleged violation. A complete

complaint also must be signed by the

complainant or by someone authorized

by the complainant to sign on his or her

behalf.

2. Time Limits for Filing Complaints

As a general matter, all complaints

must be filed within 180 days of the

alleged discrimination. However, the

appropriate Investigating Office may

extend this time limit:

(a) If the complainant can demonstrate that

he or she had no notice of the time limit and

was not otherwise aware of it; or

(b) If the complainant can demonstrate that

he or she was prevented by circumstances

beyond his or her control from submitting the

complaint in a timely fashion; or

(c) For other reasons, or under other

circumstances, considered sufficient by the

agency.

For purposes of determining when a

complaint is timely filed, a complaint

mailed to the agency will be deemed

filed on the date that it is postmarked.

Any other complaint will be deemed

filed on the date that it is received by

the appropriate Investigative Office, by

any agency supervisor, or by any other

agency employee designated by the

agency to receive such complaints.

If a complaint is filed within 180 days

of the alleged discrimination, but the

agency subsequently determines that the

complaint is not a ‘‘complete

complaint,’’ the complainant’s claims

shall nevertheless be deemed filed in a

timely manner, and the complainant

shall be given an appropriate

opportunity to amend his or her original

complaint. See Section C below for

further information regarding the

process for requesting additional

information from a complainant in order

to supplement an incomplete complaint.

3. Class Complaints

Any individual who believes that any

specific class of persons has been

subjected to discrimination prohibited

by Executive Order 13160 or any of its

implementing regulations, rules,

policies, or guidance, including this

Guidance Document, may file a class

complaint with the appropriate

Investigative Office, provided that

individual is either a member of the

allegedly aggrieved class of persons or a

representative of a member of the

allegedly aggrieved class of persons.

Each executive department or agency

should develop specific procedures to

deal with the resolution of class

complaints.

4. Legal Representation

Any individual filing a complaint

under Executive Order 13160 or any of

its implementing regulations, rules,

policies, or guidance may be

represented and assisted in all stages of

these proceedings by an attorney or

representative of his or her own

choosing. An individual has a

responsibility to promptly inform the

agency if legal counsel is retained. In

addition, an individual has an

obligation to notify the appropriate

Investigating Office if he or she wishes

to have any other representative

included in these proceedings. It is the

responsibility of the complainant to

provide the appropriate Investigating

Office with the name, address, and

phone number of any attorney or other

representative. In addition, it is an ongoing responsibility of the complainant

to advise the appropriate Investigating

Office as to any changes with respect to

the status of his or her legal and/or nonlegal representation in any proceeding

under this Executive Order or any of its

implementing regulations, rules,

policies, or guidance. Each federal

agency has a duty to ensure that all

complainants have adequate notice of

these obligations.

C. Initial Review by the Investigating

Office

Upon receipt of a complaint filed

under this Executive Order, the

investigating office must assess the

complaint and determine how to

proceed. The investigating office should

Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices 5409

specifically consider whether the

complaint is a complete complaint,

whether it was filed in a timely manner,

and, in the case of a federal employee,

whether the complaint should be

consolidated with another complaint

and transferred, if necessary.

After reviewing the complaint, the

investigating office may need to obtain

additional information from the

complainant. For example, the

investigating office may ask the

complainant to supply additional

information if the complaint is not

complete. Additional information also

may be required by the investigating

office to determine whether to waive the

time limits for filing a complaint or

whether to consolidate and transfer a

federal employee’s claim. If a

complainant fails to provide additional

information, or otherwise respond to the

investigating office’s request, within 30

days, without good cause shown, the

investigating office may dismiss the

complaint.

In certain instances, the investigating

office may determine that a complaint

should be dismissed because the alleged

discriminatory conduct did not occur in

a federally conducted education or

training program. In such cases, the

investigating office should issue a brief

written determination setting forth the

basis for the dismissal and advising the

complainant of his or her right to appeal

this decision to the Attorney General for

a final determination regarding coverage

pursuant to Section 2–203 of the

Executive Order. Responsibility for

issuing such final determinations

regarding coverage is delegated to the

Assistant Attorney General for Civil

Rights, who shall conduct, handle, or

supervise the performance of this

function.

D. Informal Resolution or Formal

Investigation

Before undertaking a formal

investigation, agencies are strongly

encouraged to pursue resolution of all

complaints filed under this Executive

Order through efforts to achieve

voluntary compliance. Toward this end,

agencies should make use of alternative

dispute resolution techniques whenever

appropriate.

If an informal resolution of a

complaint between a complainant and

respondent cannot be reached within a

reasonable period of time (generally 45

days), or if efforts to achieve an informal

resolution appear to become futile, the

investigating office should initiate a

formal investigation. However, efforts to

achieve voluntary compliance should be

undertaken whenever possible and

should continue throughout the course

of a formal investigation if and when

appropriate opportunities arise.

If a decision is made to initiate a

formal investigation, the investigating

office must notify the complainant in

writing. The investigating office should

attempt to complete the investigation

within 180 days of the agency’s receipt

of a complete complaint. The

investigation should include a thorough

review of the circumstances under

which the alleged discrimination

occurred and any other circumstances

which may constitute, or appear to

constitute, discrimination against the

complainant.

A formal investigation may require

the cooperation and participation of

other agency employees. Employees

who are required by the investigating

office to participate in any investigation

concerning violations of this Executive

Order will do so as part of their official

duties and during the course of regular

working hours.

Upon completion of a formal

investigation, the investigating office

must prepare a written report setting

forth the results of the investigation. If

a determination is made that any agency

employee has not complied with the

Executive Order or any of its

implementing rules, regulations,

policies, or guidance, Section 4–402

requires the investigating office to

complete a report and refer a copy of the

report and any relevant findings or

supporting evidence to the appropriate

agency official. The investigating office

also may make recommendations for

any corrective and/or remedial action. A

copy of the investigative report should

be sent to both the complainant and the

respondent, including the employee

who is the subject of the report.

If a determination is made that there

has been no violation of the Executive

Order or any of its implementing rules,

regulations, policies, or guidance, a

copy of the report also shall be sent to

both the complainant and the

respondent. In such cases, although no

action is required, a copy of the report

should nevertheless be sent to the

appropriate agency official.

E. Referral to the Appropriate Agency

Official

Upon receipt of a report from an

investigating office that indicates there

has been a violation of the Executive

Order or its implementing rules,

regulations, policies, or guidance, the

appropriate agency official shall review

the report and all relevant supporting

material in order to determine what, if

any, disciplinary action is appropriate.

Any action taken to discipline an

employee, including removal, must be

taken in compliance with otherwise

applicable procedures, including the

Civil Service Reform Act of 1978, Public

Law No. 95–454, 92 Stat. 1111.

The appropriate agency official also

shall review the report of the

investigating office in order to

determine whether any corrective or

remedial action should be initiated.

Pursuant to Section 4–402(b), however,

nothing in the Executive Order

authorizes monetary relief to the

complainant as a form of remedial or

corrective action. If the appropriate

agency official does determine that the

complainant is entitled to some form of

remedial or corrective action, the

appropriate agency official shall so

notify the complainant in writing. The

appropriate agency official also shall

take all necessary steps to ensure that

the corrective or remedial action

ordered is implemented. If a

determination is made that the

complainant is not entitled to any

corrective or remedial action, the

appropriate agency official shall notify

the complainant of this decision and the

reasons for this determination.

Although agencies are free to

designate any employee as the

appropriate agency official, agencies

should bear in mind that section 5–503

provides that the head of each executive

department or agency shall be

responsible for ensuring compliance

with the Executive Order. As such,

agencies should consider designating a

senior level official for this important

post.

XV. Remedies

As discussed above, in addition to

making final decisions regarding

disciplinary measures, the appropriate

agency official shall have the authority

to order corrective and/or remedial

action, where appropriate. As a general

matter, if there has been a violation of

the Executive Order, the complainant

shall be entitled to all appropriate, nonmonetary, equitable relief. The

appropriate agency official should

attempt to ensure that the aggrieved

individual ends up in the same position

he or she would have occupied absent

discrimination, or a substantially

equivalent position. In the context of

violations of this Executive Order,

specific remedies are likely to include

placement in the next available

education or training program of a

comparable nature; the development of

an individualized training opportunity;

the cancellation of an unwarranted

personnel action or the expungement of

adverse materials from agency records;

the awarding of a diploma, other

certificate, or specific grade; and the

5410 Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices

provision of reasonable

accommodations.

Federal agencies must ensure that

appropriate agency officials are

accorded sufficient authority to provide

all appropriate forms of relief.

Complainants should be aware, though,

that Section 8 of the Executive Order

specifically provides that the Order ‘‘is

not intended, and should not be

construed, to create any right or benefit,

substantive or procedural, enforceable at

law by a party against the United States,

its agencies, its officers, or its

employees.’’ Section 8 further provides,

however, that the Order is not intended

‘‘to preclude judicial review of final

decisions in accordance with the

Administrative Procedures Act, 5 U.S.C.

701, et seq.’’

XVI. Reporting Requirements

Section 6 of the Executive Order

establishes reporting requirements for

federal agencies. For the first three years

following issuance of this Executive

Order, all federal agencies shall file

annual reports with the Attorney

General that summarize the number,

nature, and disposition of complaints

filed under the Executive Order. Such

reports are to be submitted to the

Assistant Attorney General for Civil

Rights within 90 days of the end of the

preceding year’s activities. Subsequent

reports are to be submitted every three

years and within 90 days of the end of

each three year period.

XVII. Conclusion

As discussed above, this Guidance

Document is intended to provide

executive departments and agencies

with a basic framework for ensuring

compliance with Executive Order

13160. Pursuant to Section 5–502 of the

Executive Order, each agency has 90

days from January 18, 2001 to establish

procedures for receiving and addressing

complaints. Each agency also shall take

‘‘all necessary steps’’ to effectuate any

subsequent rules, regulations, policies,

or guidance issued by the Attorney

General or the Assistant Attorney

General for Civil Rights in connection

with this Executive Order within 90

days of issuance.

The mandate of Executive Order

13160 is clear: to ensure that all

individuals, on the basis of race, sex,

color, national origin, disability,

religion, age, sexual orientation, and

status as a parent, have an equal

opportunity to participate in, enjoy the

benefits of, and be free from

discrimination in, federally conducted

education and training programs.

Federal agencies should strive to

achieve these objectives to the fullest

extent possible and are encouraged to

use this Guidance Document as a

starting point for achieving these

important goals.

[FR Doc. 01–1494 Filed 1–17–01; 8:45 am]

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