Final rule removing the affirmative outreach requirement from 29 CFR Part 38

Removes and reserves 29 CFR 38.40 (affirmative outreach) and makes conforming amendments: revises § 38.31(e) to delete "consistent with § 38.40"; reserves § 38.54(c)(1)(v), which had required the Governor's Nondiscrimination Plan to describe compliance with affirmative outreach; and narrows the cross-reference at § 38.54(c)(2)(viii)(F) from "§§ 38.34 through 38.40" to "§§ 38.34 through 38.39." The effect is to end the obligation of every WIOA Title I recipient and American Job Center to conduct outreach reasonably calculated to reach members of protected groups — including, by operation of the unamended § 38.7(a) definition, transgender people. The Department reasons that § 188(e) incorporates only Title VI, Title IX, Section 504, and the Age Discrimination Act, none of which defines discrimination to include a failure to conduct outreach, and that "nondiscrimination and outreach are distinct concepts"; it adds equal-protection concerns about race-conscious governmental requirements. Of 84 comments received, 83 opposed rescission, including national and local disability-rights organizations, civil-rights groups, a labor union, and advocacy organizations. The Department responded that it "has not initiated a single enforcement action predicated on a recipient's failure to conduct affirmative outreach" since 2016 and that recipients remain free to conduct outreach voluntarily. RIN 1291-AA47. The rule contains no discussion of sex, gender identity, transgender participants, or § 38.7.