28 C.F.R. 42 app A to Subpart D of Part 42 Commentary

LibraryCode of Federal Regulations
CurrencyCurrent through December 31, 2023
Citation28 C.F.R. 42 app A to Subpart D of Part 42

Section 42.201 (c). The compliance enforcement mechanism of section 815(c)(2) applies by its terms to State and local government. The prohibitions in section 815(c)(1), however, apply to all recipients of OJARS assistance. Accordingly, where a private entity which has received LEAA, NIJ, or BJS assistance through a State or local unit of government is determined by OJARS to be in non-compliance, OJARS will invoke the section 815(c)(2) mechanism against the appropriate unit of government for its failure to enforce the assurances of compliance given it by the private recipient, unless the unit has initiated its own compliance action against the private recipient. The fund termination procedures of section 803(a) will be invoked against non-complying private recipients which receive assistance directly from LEAA, NIJ, or BJS, or through another private entity.

Section 42.202 (g). Section 815(c)(1) of the JSIA limits suspension and termination of assistance in the event of noncompliance to the "programs or activity" in which the noncompliance is found. The phrase "program or activity" was first used in section 815(c)(1) of the Crime Control Act of 1976, the substantially identical predecessor to section 815(c)(1).

House Report No. 94-1155 (94th Congress, 2d Session), at p. 26, explained the provision as follows:

"Suspension may be limited to the specific program or activity found to have discriminated, rather than all of the recipients' LEAA funds.

"For example, if discriminatory employment practices in a city's police department were cited in the notification, LEAA may only suspend that part of the city's payments which fund the police department. LEAA may not suspend the city's LEAA funds which are used in the city courts, prisons, or juvenile justice agencies."

This passage makes it clear that OJARS need not demonstrate a nexus between the particular project funded and the discriminatory activity. See Lau v. Nichols,414 U.S. 563, 566(1974).

Sections 42.203 (b) and 42.203 (e-i). These provisions are derived from 28 CFR 42.104(b) of subpart C of the Department of Justice Nondiscrimination Regulations. Where appropriate "sex" and "religion" have been added as prohibited grounds of discrimination, and "denial of employment" as another activity within the scope of section 815(c)(1).

Individual projects benefiting a particular sex, race, or ethnic group are not violative of section 815(c)(1) unless the granting agency or the recipient has engaged in a pattern of granting preferential treatment to one such group, and cannot justify the preference on the basis of a compelling governmental interest, in the case of racial or ethnic discrimination, or a substantial relationship to an important governmental function, in the case of sex discrimination.

Section 42.203 (b)(10). On August 25, 1978, the Department of Justice, the Equal Employment Opportunity Commission, the Department of Labor and the then-Civil Service Commission published the Uniform Employee Selection Guidelines codified at 28 CFR 50.14. Since OJARS is a component of the Department, these guidelines are applicable to the selection procedures of LEAA, NIJ, and BJS recipients. See 44 FR 11996 (March 2, 1979) for a detailed commentary on the guidelines.

Section 42.203 (c). In the Conference Report on section 518(c) of the Crime Control Act (the substantially identical predecessor of section 815(c)), the managers stated that "In the area of employment cases brought under this section, it is intended by the conferees that the standards of title VII of the Civil Rights Act of 1964 apply." H. Rept. No. 94-1723 (94th Cong., 2d Sess.) at p. 32.

This section makes the OJARS standards of employment discrimination consistent with those used by the Civil Rights Division of the...

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