PART 117—NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OR ACTIVITIES OF SBA—EFFECTUATION OF THE AGE DISCRIMINATION ACT OF 1975, AS AMENDED Authority: Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq. Source: 50 FR 41648, Oct. 11, 1985, unless otherwise noted. Editorial Note: Nomenclature changes to part 117 appear at 68 FR 51349, Aug. 26, 2003. § 117.1 Purpose. The purpose of this part is to effectuate the provisions of The Age Discrimination Act of 1975, as amended (hereinafter referred to as the Act § 117.2 Application of this part. (a) This part applies to all recipients of Federal financial assistance administered by the Small Business Administration, whether or not the specific type of Federal financial assistance administered is listed in appendix A. (b) For the purposes of this part, the prohibition against age discrimination applies to natural persons of all ages. (c) This part does not apply to the employment practices of any recipients. [50 FR 41648, Oct. 11, 1985, as amended at 68 FR 51349, Aug. 26, 2003] § 117.3 Definitions. As used in this part: (a) The term act (b) The term action (c) The term age (d) The term age distinction (e) The term age-related children, adult, older persons, student (f) The term agency (g) The term applicant (h) The term Federal financial assistance (i) The term normal operation (j) The term program or activity (1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or (ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government; (2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or (ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system; (3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship— (A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or (B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or (4) Any other entity which is established by two or more of the entities described in paragraph (j)(1), (2), or (3) of this section. (k) The term recipient recipient subrecipients (l) The term SBA (m) The term subrecipient (n) The term statutory objective [50 FR 41648, Oct. 11, 1985, as amended at 68 FR 51349, Aug. 26, 2003] § 117.4 Discrimination prohibited and exceptions. (a) General. (b) Specific discriminatory actions prohibited. (1) Deny an individual any services, financial aid or other benefit provided by the business or other activity, except where sanctioned by one of the exceptions stated in § 117.4 (d), (e) or (f) of this section. (2) Provide any service, financial aid or other benefit, except as sanctioned by one of the exceptions stated below, in such a way as to deny or limit persons in their efforts to participate in federally-assisted programs or activities; (3) Treat an individual differently from others, except as sanctioned by an exception stated below, in determining whether the person satisfied any admission, enrollment, eligibility, membership, or other requirement or condition which individuals must meet in order to be provided any service, financial aid or other benefit provided by the business or activity. (c) The specific forms of prohibited discrimination in paragraph (b) of this section does not limit the generality of the prohibition in paragraph (a) of this section. (d) Exception 1. (1) Age is used as a measure or approximation of one or more other characteristics; and (2) The other characteristic(s) must be measured or approximated in order for the normal operation of the business or activity to continue, or to achieve any statutory objective of the business or activity; and (3) The other characteristic(s) can be reasonably measured or approximated by the use of age; and (4) The other characteristic(s) are impractical to measure directly on an individual basis. Note: All of the above factors must be met in order to exclude a business activity from the provisions of this part. (e) Exception 2. (f) Exception 3. (g) The burden of proving that an age distinction or other action falls within the exceptions outlined in paragraphs (d), (e), and (f) of this section on the recipient of Federal financial assistance. § 117.5 Illustrative applications. (a) Discrimination in providing financial assistance. (b) Discrimination in accommodations or services. (c) The discrimination prohibited by § 117.5(b) includes, but is not limited to the failure or refusal, because of age, to accept a patient, student, member, customer, client, or passenger, except when the imposition of this prohibition would interfere with the normal operation of the business, e.g., pediatricians, nursery schools, geriatric clinics. § 117.6 Remedial and affirmative action by recipients. (a) Where a recipient is found to have discriminated on the basis of age, the recipient shall take any remedial action which the Agency may require to overcome the effects of the discrimination. If another recipient exercises control over the recipient that has discriminated, both recipients may be required to take remedial action. (b) Even in the absence of a finding of discrimination, a recipient may take affirmative action to overcome the effects of conditions that resulted in limited participation in the recipient's program or activity on the basis of age. (c) If a recipient operating a program or activity which serves the elderly or children in addition to persons of other ages, provides special benefits to the elderly or to children, the provision of those benefits shall be presumed to be voluntary affirmative action provided that it does not have the effect of excluding otherwise eligible persons from participation in the program or activity. § 117.7 Assurances required. An application for financial assistance administered by the Small Business Administration shall, as a condition of its approval and the extension of such assistance, contain or be accompanied by an assurance that the recipient will comply with this part. SBA shall specify the form of the foregoing assurance, and the extent to which like assurances will be required of contractors and subcontractors, transferees, successors, and other participants. § 117.8 Responsibilities of SBA recipients. (a) Each SBA recipient has the primary responsibility to ensure that its programs or activities are in compliance with the Act and these regulations, and shall take steps to eliminate violations of the Act. A recipient also has responsibility to maintain records, provide information, and to afford SBA access to its records to the extent SBA finds necessary to determine whether the recipient is in compliance with the Act and these regulations. (OMB No. 3245 0076) (b) Where a recipient passes on Federal financial assistance from SBA to subrecipients, the recipient shall provide the subrecipients written notice of their obligations under the Act and these regulations. (c) Each recipient shall make necessary information about the Act and these regulations available to the beneficiaries of its programs or activities in order to inform them about the protections against discrimination provided by the Act and these regulations. (d) Whenever an assessment indicates a violation of the Act and the SBA regulations, the recipient shall take corrective action. § 117.9 Compliance information. (a) Cooperation and assistance. (b) Record Keeping. (c) Each recipient shall provide to SBA, upon request, information and reports which SBA determines are necessary to ascertain whether the recipient is complying with the Act and these regulations. (d) Access to sources of information. (Information collection requirements in paragraph (c) were approved by the Office of Management and Budget under control number 3245-0076) § 117.10 Review procedures. (a) SBA shall from time to time review the practices of recipients to determine whether they are complying with this part. As part of a compliance review or complaint investigation, SBA may require a recipient employing 15 or more full-time employees to complete a written self-evaluation, in a manner specified by the Agency, of any age distinction imposed in its program or activity receiving Federal financial assistance. (b) If a compliance review or pre-award review indicates a violation of the Act or these regulations, SBA will attempt to achieve voluntary compliance with the Act. If voluntary compliance with the recipient cannot be achieved, such recipient will be subject to the enforcement procedure contained in § 117.15 of these regulations. A refusal to permit an on-site compliance review during normal working hours may constitute noncompliance with this part. § 117.11 Complaint procedures. (a) Any person who believes that he/she or any specific class of individuals is being or has been subjected to discrimination by SBA, a recipient, or an applicant for assistance, prohibited by this part may, by himself/herself or by a representative, file with SBA a written complaint. The complainant has the right to have a representative at all stages of the complaint procedure. (b) A complaint must be filed not later than 180 days from the date of the alleged discrimination, unless the time filing is extended by SBA. The Adminstrator, the Assistant Administrator, Office of Equal Employment Opportunity & Civil Rights Compliance, are the only officials who may waive the 180-day time limit for filing complaints under this part. SBA will consider the date a complaint is filed to be the date upon which the complaint is sufficient to be processed. (c) Each complaint will be reviewed to ensure that it falls within the coverage of the Act and contains all information necessary for further processing. (d) SBA will attempt to facilitate the filing of complaints wherever possible, including taking the following actions: (1) Accepting as a sufficient complaint, any written statement which identifies the parties involved and the date the complainant first had knowledge of the alleged violation, describes generally the action or practice complained of, and is signed by the complainant. (2) Freely permitting a complainant to add information to the complaint to meet the requirements of a sufficient complaint. (3) Notifying the complainant and the recipient of their rights and obligations under the complaint procedure, including the right to have a representative at all stages of the complaint procedure. (4) Notifying the complainant and the recipient (or their representatives) of their right to contact the Assistant Administrator, Office of Equal Employment Opportunity & Civil Rights Compliance, for information and assistance regarding the complaint resolution process. (e) SBA will return to the complainant any complaint filed under the jurisdiction of this regulation, but found to be outside the jurisdiction of this regulation, and will state the reason(s) why it is outside the jurisdiction of this regulation. [50 FR 41648, Oct. 11, 1985, as amended at 72 FR 50038, Aug. 30, 2007] § 117.12 Mediation. (a) SBA shall, after ensuring that the complaint falls within the coverage of this Act and all information necessary for further processing is contained therein, unless the age distinction complained of is clearly within an exception, promptly refer the complaint to the Federal Mediation and Conciliation Service (FMCS). (b) SBA shall, to the extent possible, require the participation of the recipient and the complainant in the mediation process in an effort to reach a mutually satisfactory settlement of the complaint or make an informed judgment that an agreement is not possible. Both parties need not meet with the mediator at the same time. (c) If the complainant and the recipient reach a mutually satisfactory resolution of the complaint during the mediation period, the mediator shall prepare a written statement of the agreement and have the complainant and recipient sign it. (d) A copy of the written mediation agreement will be referred to SBA, and no further action will be taken unless it appears that either the complainant or the recipient (or other alleged discriminator subject to this part) fails to comply with the agreement. (e) If at the end of 60 days after the receipt of a complaint by SBA, or at any time prior thereto, an agreement is reached or the mediator determines an agreement cannot be reached through mediation, the agreement or complaint will be returned to SBA. (f) This 60-day period may be extended by the mediator, with the concurrence of SBA for not more than 30 days if the mediator determines that an agreement will likely be reached during the extended period. (g) The mediator shall protect the confidentiality of all information obtained in the course of the mediation process. No mediator shall testify in any adjudicative proceeding, produce any document, or otherwise disclose any information obtained during the course of the mediation process without prior approval of the head of the agency appointing the mediator. § 117.13 Investigation and resolution of matters. (a) SBA will make a prompt investigation whenever a compliance review indicates a possible failure to comply with this part by the recipient and additional information is needed by SBA to assure compliance with this part, or when an unresolved complaint has been returned by the FMCS, or when it appears that the complainant or the recipient is failing to comply with a mediation agreement. The investigation shall include a review of the pertinent practices and policies of the recipient, the circumstances under which the possible noncompliance with this part occurred, and other factors relevant to a determination as to whether the recipient is complying, is not complying, or has failed to comply with this part. (b) Resolution of matters. (1) If, during the course of an investigation, the matter is resolved by informal means, SBA will put any agreement in writing and have it signed by the parties and an authorized official of SBA. (2) If investigation indicates a violation of the Act or these regulations, SBA will attempt to achieve voluntary compliance. If SBA cannot achieve voluntary compliance, it will begin enforcement as described in § 117.15. (3) If an investigation does not warrant action, SBA will so inform the complainant, if applicable, and the recipient in writing. § 117.14 Intimidating or retaliatory acts prohibited. No complainant, recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by this part or because an individual or group has made a complaint, testified, assisted, or participated in any manner in an investigation, review, enforcement process, or hearing under this part. The identity of complainants shall be kept confidential except to the extent necessary to carry out the purposes of this part, including the conduct of any investigation, hearing, mediation, or judicial proceeding. § 117.15 Procedure for effecting compliance. (a) General. (2) In addition, compliance may be effected by any other means authorized by law. Such other means may include, but are not limited to: (i) Action by SBA to accelerate the maturity of the recipient's obligation; (ii) Referral to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States or obligations of the recipient created by the Act or this part; and (iii) Use of any requirement of or referral to any Federal, State or local government agency that will have the effect of correcting a violation of the Act or these regulations. (3) If there appears to be a failure or threatened failure to comply with this part by an SBA office or official, the Assistant Administrator, Office of Equal Employment Opportunity & Civil Rights Compliance, will recommend appropriate corrective action to the Administrator. Any resulting adverse action against an SBA employee shall follow Office of Personnel Management and SBA procedures for such action. (b) Noncompliance with §§ 117.7 and 117.9. (c) SBA will not take action toward accelerating repayment, suspending, terminating, or refusing financial assistance until: (1) SBA has advised the applicant or recipient of the failure to comply and has determined that compliance cannot be secured by voluntary means; (2) There has been an express finding on the record, after an opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed by or pursuant to this part; (3) The action has been approved by the Administrator of SBA pursuant to § 117.17; and (4) The expiration of 30 days after SBA has filed with the committee of the House and the committee of the Senate having legislative jurisdiction over the form of financial assistance involved, a full written report of the circumstances and the grounds for such action. (d) Other means authorized by law. No action to effect compliance by any other means authorized by law shall be taken until: (1) SBA has determined that compliance cannot be secured by voluntary means; (2) The action has been approved by the Administrator or designee; (3) The expiration of 30 days after SBA has filed with the committee of the House and the committee of the Senate having legislative jurisdiction over the form of financial assistance involved, a full written report of the circumstances and the grounds for such action; (4) The applicant or recipient has been notified of the failure to comply, and of the action to be taken to effect compliance; and (5) The expiration of at least 10 days from the mailing of such notice to the applicant or recipient or other person. During this period of at least 10 days from the mailing of such notice to the applicant or recipient or other person, additional efforts shall be made to persuade the applicant or recipient to comply with this part and to take such corrective action as may be appropriate. [50 FR 41648, Oct. 11, 1985, as amended at 72 FR 50038, Aug. 30, 2007] § 117.16 Hearings. (a) Opportunity for hearing. (1) Fix a date not less than 20 days after the date of such notice within which the applicant or recipient may request the Office of Hearings and Appeals (OHA) that the matter be scheduled for hearing; or (2) Advise the applicant or recipient that the matter in question has been set down for hearing at a stated place and time. The time and place so fixed shall be reasonable and shall be subject to change for cause. The complainant shall be advised of the time and place of the hearing. An applicant or recipient may waive a hearing and submit written information and argument for the record. The failure of an applicant or recipient to appear at a hearing for which a date has been set shall be deemed to be a waiver of the right to a hearing and as consent to the making of a decision on the basis of such information as is available. (b) Time and place of hearing. (c) Right to counsel. (d) Procedures, evidence, and record. (2) Technical rules of evidence may be waived by the administrative law judge conducting a hearing pursuant to this part, but rules or principles designed to assure production of the most credible evidence available, and subject testimony to test by cross-examination shall be applied where reasonably necessary. The administrative law judge may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made. (e) Consolidated or joint hearings. § 117.17 Decisions and notices. (a) Decision by an administrative law judge. (b) Decisions on record or review by the Administrator. (c) Decisions on record where a hearing is waived. (d) Rulings required. (e) Decision by the Administrator. (f) Content of orders. (g) Post termination proceedings. (2) Any applicant or recipient adversely affected by an order entered pursuant to paragraph (f) of this section may at any time request the Administrator to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or recipient has met the requirements of paragraph (g)(1) of this section. If the Administrator determines that those requirements have been satisfied, he/she shall restore such eligibility. (3) If the Administrator denies any such request, the applicant or recipient may submit a request for a hearing in writing, specifying why it believes the denial to have been in error. It shall there upon be given an expeditious hearing, with a decision on the record, in accordance with rules and procedures issued by the Administrator. The applicant or recipient shall be restored to such eligibility if it proves at such hearing that it satisfied the requirements of paragraph (g)(1) of this section. While proceedings under this paragraph are pending, the sanctions imposed by the order issued under paragraph (f) of this section shall remain in effect. § 117.18 Judicial review. (a) The complainant may file a civil action following the exhaustion of administrative remedies under the Act. Administrative remedies are exhausted if: (1) 180 days have elapsed since the complainant filed the complaint and the Agency has made no finding with regard to the complaint; or (2) The Agency has issued a finding in favor of the recipient. (b) If the Agency fails to make a finding within 180 days or issues a finding in favor of the recipient, the Agency shall: (1) Advise the complainant of this fact; (2) Advise the complainant of the right to file a civil action for injunctive relief; and (3) Inform the complainant: (i) That the complainant may bring a civil action only in a United States district court for the district in which the recipient is found or transacts business; (ii) That a complainant prevailing in a civil action has the right to be awarded the costs of the action, including reasonable attorney's fees, but that the complainant must demand these costs in the complaint; (iii) That before commencing the action the complainant shall give 30 days notice by registered mail to the Secretary of the Department of Health and Human Services, the Attorney General of the United States and the recipient; (iv) That the notice must state: The alleged violation of the Act; the relief requested; the court in which the complainant is bringing the action; and whether or not attorney's fees are demanded in the event the complainant prevails; and (v) That the complainant may not bring an action if the same alleged violation of the Act by the same recipient is the subject of a pending action in any court of the United States. § 117.19 Effect on other regulations. (a) All regulations, orders or like directions heretofore issued by SBA which impose requirements designed to prohibit any discrimination against individuals on the grounds of age and which authorize the suspension or termination of or refusal to grant or to continue financial assistance to any applicant for or recipient of such assistance for failure to comply with such requirements, are hereby superseded to the extent that such discrimination is prohibited by this part, except that nothing in this part shall be deemed to relieve any person of any obligation assumed or imposed under any such superseded regulation, order, instruction, or like direction prior to the effective date of this part. Nothing in this part, however, shall be deemed to supersede any of the following (including future amendments thereof): (1) Executive Order 11246, as amended, and regulations issued thereunder; (2) Title VI of the Civil Rights Act of 1964, as amended; (3) The Equal Credit Opportunity Act, as amended and Regulation B of the Board of Governors of the Federal Reserve System, (12 CFR part 202); (4) Section 504 of the Rehabilitation Act of 1973, as amended; (5) Title VIII of the Civil Rights Act of 1968; (6) Title IX of the Educational Amendments of 1972; (7) Section 633(b) of the Small Business Act; (8) Part 113 of title 13 of the Code of Federal Regulations (13 CFR part 113); or (9) Any other statute, order, regulation or instruction, insofar as such order, regulations, or instruction prohibits discrimination on the grounds of age in any program or activity or situation to which this part is inapplicable on any other ground. § 117.20 Supervision and coordination. The Administrator may from time to time assign to officials of SBA or to officials of other agencies of the Government with the consent of such agencies, responsibilities in connection with the effectuation of the purpose of the Act and this part (other than responsibility for final decision as provided in § 117.17), including the achievement of effective coordination and maximum uniformity within SBA and within the Executive Branch of the Government in the application of the Act and this part to similar programs or activities and in similar situations. Responsibility for administering and enforcing this part is assigned by the Administrator, to the Office of Civil Rights Compliance, Office of Equal Employment Opportunity and Compliance of the Small Business Administration. Appendix A to Part 11 1 Type of Federal financial assistance Authority Business Loans Small Business Act, section 7(a). Debtor State Development companies (501) and their small business concerns Small Business Investment Act, Title V. Debtor State Development companies (502) and their small business concerns Small Business Investment Act, Title V. Debtor certified development companies (503) and their small business concerns Small Business Investment Act, Title V. Debtor small business investment companies and their small business concerns Small Business Investment Act, Title III. Pollution Control Small Business Investment Act, Title IV, Part A. Disaster Loans: Physical, including riot Small Business Act, section 7(b)(1). Economic Injury (EIDL) Small Business Act, section 7(b)(2). Federal Action Loan Program Small Business Act, section 7(b)(3). Small Business Institute Small Business Act, section 8(b)(1). Small Business Development Centers Small Business Act, section 21. International Trade Program Small Business Act, section 22. Technical and Management Assistance Small Business Act, section 7(j). 1