II. Federal Laws Requiring Language Access Services
Title VI of the Civil Rights Act prohibits discrimination on the basis of race, color, or national origin in any program or activity receiving federal financial assistance. Executive Order No. 13,166, issued in 2000, interprets and enforces Title VI. According to that Order, denying LEP speakers access to federal programs because of their national origin is discriminatory and violates Title VI. The Order requires federal agencies and programs receiving federal financial assistance to take reasonable steps to ensure that LEP speakers have meaningful access to their programs and activities.
In 2002, the Department of Justice (“DOJ”) issued a guidance document entitled Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons (“LEP Guidance”), which implemented Executive Order No. 13,166, as has each federal agency that provides federal financial assistance. The LEP Guidance describes how recipients of federal funds can satisfy their obligation to provide access for LEP speakers to access their programs.
A. What is a “program or activity receiving federal financial assistance”?
For purposes of Title VI and Executive Order No. 13,166, a program receives federal funds if it receives any form of federal financial assistance, including grants, training, use of equipment, donations of surplus property. If a recipient passes federal financial assistance on to another entity, Title VI's requirements apply to that receiving entity as well.
If one part of an agency receives federal funds, Title VI's requirements extend to all of the agency's operations, including programs that do not directly receive federal funds. Section 2000d-4a of Title VI defines a “program or activity” as all of the operations of a department, agency, special-purpose district, or other instrumentality of a state or of a local agency; or the entity of such state or local agency that distributes such assistance and each such department or agency (and each other state or local public entity) to which the assistance is extended, in the case of assistance to a state or local agency.
For example, if the Department of Housing and Urban Development (“HUD”) gives a recipient funding for a particular facility, all of the recipient's programs are covered by Title VI, not just the operations having to do with the funded facility. If, however, a granting agency decides to terminate a recipient's funding because reasonable language access services have not been provided, only funds directed to the program that is out of compliance will be affected.
B. If an agency receives federal financial assistance, what does Title VI require it to do in order to provide meaningful access to LEP speakers?
Executive Order No. 13,166 requires recipients of federal funds to “take reasonable steps to ensure meaningful access to programs and activities” by LEP speakers. Every federal agency providing federal financial assistance has a guidance document explaining the obligation to provide language access services under its programs. Each agency's guidance document must be consistent with the DOJ's LEP Guidance.
The DOJ's LEP Guidance provides a four factor test that can help an agency determine whether or not it must provide language access services, and if so which services it must provide. Those factors are:
1) How many limited English-proficient speakers does the program serve or encounter?
2) How often do limited English-proficient speakers come into contact with the program?
3) What kind of program, activity, or service does the agency provide and how important is it to people's lives?
4) How much will it cost to provide language access services and what resources are available to the program?
The following discussion focuses on the DOJ's LEP Guidance, with occasional examples drawn from different agencies' guides.
C. The Four Factor Test
1. How many LEP speakers does the program serve or encounter?
The first step in deciding what language access services to provide is to determine how many of the people served by a program cannot communicate effectively in English, and what languages those people speak. The more LEP individuals there are who speak a particular language, the more an agency must do to provide language access services for that group. Past experience can be a guide. An agency should first determine how often LEP residents have encountered the agency's program in the past, and what kinds of language services they have needed.
Next, the agency should look at the population in its service area, as the funding agency defines it. What matters is the population that might walk in the door. Even if a city or county has relatively few LEP residents, if a particular office serves a neighborhood where an LEP population is concentrated, there may be an obligation to provide language access services in that particular office. The DOJ's LEP Guidance suggests several ways to find out about LEP speakers in an area:
• Look at demographic data from the U.S. Census.
• Look at data gathered by school districts.
• Consult with community organizations and state government resources.
In California, the publications California Speaks and L.A. Speaks provide a detailed analysis of language diversity and English proficiency in each legislative district and in Los Angeles County based on census data from 2000. More current data may now be obtained from the 2010 U.S. Census.
2. How often do LEP speakers come into contact with the program?
The more often LEP speakers come into contact with a program, the greater the obligation to provide language access services. The DOJ's LEP Guidance contemplates that recipients of federal funds will accurately assess how frequently their programs encounter LEP speakers, and what languages they speak. Tracking the type of encounter involved--telephone, in person, email--can also be an important guide to the kind of language access services that will be most effective.
Intake procedures that record contacts with LEP speakers can accurately assess what language access services are necessary. For example, the California Department of Motor Vehicles (“DMV”) uses a biennial survey to measure frequency of contact with LEP speakers. DMV offices around the state conduct a two-week survey and record every customer's language. If a non-English language shows up in more than 5% of customer interactions, the office will provide language access services for that language.
An agency will not be absolved of the obligation to expand services if a low frequency of contact is due to the failure to provide language access services in the past. Agencies are thus advised to consider how the frequency of contact might increase once language barriers are removed. Collecting data on when members of the public have been turned away due to a lack of available language access services is also important for making adjustments in the future.
3. What kind of program, activity, or service does the agency provide and how important is it to people's lives?
The more important a service is to people's lives, the greater the obligation to provide language access services. For programs with life or death implications--like disaster response or healthcare--the obligation is strongest. If people are compelled to participate in a program--like criminal proceedings or education--language access will likely also be viewed as critical. Similarly, if an application procedure is needed in order to collect a benefit, language assistance services are important in order to ensure that LEP speakers have equal access to the benefit.
Each federal funding agency indicates in its guidance which activities or services it deems critical. The Corporation for National and Community Service (“CNCS”), for example, indicates that providing assistance with enrollment in public services and providing access to emergency or medical care are critical services. Providing equal access to critical services may require agencies to ensure that oral interpreters are immediately available, and agencies providing critical services should give serious consideration to hiring bilingual staff to ensure receipt of services. By contrast, services that are not so critical would include voluntary general public tours of a public facility.
4. How much will it cost to provide language access services and what resources are available to the recipient agency's program? Cost is an important factor in determining what types of language access services are reasonable for an agency. If a service's cost greatly outweighs the benefit to be gained, the recipient agency is not expected to provide that service. The DOJ's LEP guidance and other agencies' guidance documents recognize that resources may be limited and that small agencies with limited budgets cannot be expected to provide the same level of service as larger agencies with larger budgets.
Agencies with limited resources are particularly encouraged to explore cost-saving technologies and resource-sharing arrangements in order to provide language access services. Funding agencies may be able to provide valuable information on cost-saving measures like resource sharing and use of the latest technology. Each funding agency will also have suggestions in its Title VI policy guidance particularly tailored to the kind of services or programs a recipient agency provides.
Although cost is a legitimate factor to consider, the DOJ explains that “[r]ecipients should carefully explore the most cost-effective means of delivering competent and accurate language services before limiting services due to resource DOJ officials have gone to the extent of saying that “[e]ven in tough economic times, assertions of lack of resources will not provide carte blanche for failure to provide language access. Language access is essential and is not to be treated as a ‘frill’ when determining what to cut in a
If an agency claims funds for language services are unavailable due to other agency expenses, the agency will be expected to justify its spending priorities. There is heightened concern for agencies serving a large LEP population. Such agencies are expected to document why costs are an impediment to providing language access, and such claims will need to be “well substantiated,” according to the DOJ's LEP guidance.
D. Does an agency need to prepare a formal plan assessing the need for language access services and identifying steps to be taken to meet that need?
The DOJ strongly recommends that recipients develop a written plan, called a Limited English Proficiency Plan (“LEP Plan”), for providing language access services. Many LEP Plans are available online and can provide ideas for best practices. Generally, written plans can document compliance with the obligation to provide meaningful access for LEP speakers. A plan can also provide a framework for providing services, helping a program train staff, planning operations, and controlling costs. Even a small agency can benefit by developing a plan, even if the plan simply informs staff how to contact a telephone translation service.
The DOJ's LEP Guidance stops short of requiring every recipient to develop a written plan, recognizing small agencies with limited staff and a focused mission may not benefit enough from a plan to justify the cost of developing it. Other funding agencies, like the Department of Transportation (“DOT”), strongly suggest developing an LEP Plan regardless of an agency's size and resources. The DOT emphasizes that “after completing the four-factor analysis and deciding what language assistance services are appropriate, a [DOT] recipient should develop an implementation plan to address the identified needs of the LEP populations it Although some DOT recipients, such as those “serving very few LEP persons or those with very limited resources, may choose not to develop a written LEP [P]lan,” the underlying obligation to provide meaningful access still remains. The DOT suggests that recipients who choose not to develop an LEP Plan “consider alternative ways to reasonably articulate a plan for providing meaningful
E. If an agency encounters LEP speakers, what specific language access services must it provide?
The DOJ's LEP Guidance indicates that “recipients have substantial flexibility in determining the appropriate mix” of language services to provide in light of the four-factor test. If the recipient agency only encounters LEP speakers sporadically, reasonable assistance can be as simple as using language cards (widely available on the web to identify a language the individual understands), and providing staff with access to a telephone interpreting service or a list of community groups that can provide informal interpreters.
Language access services fall into two categories: 1) translation of written documents, and 2) interpreting services. For interpreting services, agencies have a range of options including:
• hiring bilingual staff;
• hiring professional interpreters;
• contracting with interpreters for services as needed;
• recruiting volunteer interpreters;
• contracting for telephonic interpretation services; and
• arranging for local community groups to provide interpreters.
The overriding concern, regardless of the mix of services used, is the interpreter's competence in light of the type of services the agency's program provides. For instance, hospital encounters or legal proceedings will involve interpreting technical terms and may have serious consequences, requiring a certified professional to interpret accurately. Less formal settings may not require a certified interpreter. If an individual prefers to use a family member, friend, or fellow inmate, he or she should be allowed to do so. However, in many instances such willing helpers may not be competent to interpret correctly and using them could also raise issues of privacy and confidentiality.
The DOJ provides clearer guidance on written translations by providing a “safe harbor.” To qualify for the safe harbor provision agencies must translate vital documents into a language if the number of LEP speakers served by the agency who speak that language crosses a specific numerical threshold. If the agency complies with the safe harbor provisions, it is considered “strong evidence of compliance with the recipient's written-translation
To take advantage of the safe harbor provision, an agency should first determine which of its documents are vital. This may be difficult. Not every document that is helpful in understanding a program is necessarily critical for ensuring meaningful access. To determine which documents are vital, look to the importance of the program or service and the consequences for the LEP community that would flow from a failure to translate. Factors to consider might be:
• whether the document creates legally enforceable rights or responsibilities (examples include leases, rules of conduct, and notices of benefit denials).
• whether the document solicits important information required to establish or maintain eligibility to participate in a federally assisted program (examples include applications or certification forms).
• whether the document itself is a core benefit or service provided by the program.
Next, the agency should determine how many of the LEP speakers affected by the program are from a particular language group. The safe harbor provision requires translating all vital written documents into a language if that language is the primary language for more than 1000 LEP speakers eligible for or likely to be affected by the program, or if the language is the primary language for between 50 and 1000 eligible or affected LEP speakers and that number constitutes 5% of the total population the program affects.
If the program affects less than fifty LEP speakers from a particular language group, however, there is no obligation to translate documents into that language.
For documents that are not vital or for language groups that do not meet the numerical threshold, it is sufficient to provide written notice in that group's primary language that LEP speakers have the right to have an interpreter read the document to them. Again, competence of the translation is critical for assessing compliance. Although it is not mandatory, it is preferable that professional translators be used, especially for important or sensitive documents.
The mandate is simply to provide meaningful access. For example, instead of translating application forms, an agency may decide to ask for the information being sought in the forms orally. As an example, a number of state unemployment insurance programs have transitioned from paper-based application and certification forms to telephone-based systems. Also, some languages--like Hmong--are oral rather than written. If many LEP speakers will likely be unable to read translated documents or written instructions, providing interpreters may be a more effective way to communicate.
F. What are the consequences if an agency fails to comply when federal law requires provision of language access services?
Individuals cannot sue to enforce Title VI unless they can prove intentional discrimination. LEP speakers can, however, complain to the federal funding agency if the recipient agency does not provide meaningful access to services and programs. Federal agencies can initiate an investigation of the recipient agency based upon an individual's complaint or investigate on their own initiative. As of 2010, the DOJ has increased its efforts to ensure Title VI compliance in the area of language access by opening numerous investigations.
After attempting to resolve an issue through voluntary and cooperative efforts, the agency granting funds may submit the matter for an administrative hearing and move to cut off funding, or may sue to achieve compliance. Some investigations, initiated as civil rights complaints, have led to cooperative agreements between the DOJ and local agencies, formalized as memoranda of understanding between the parties. These agreements generally include timelines to implement language access policies, describe when and how language access will be offered, and how staff will be trained to provide access. The agreements also include multiyear reporting requirements which allow the DOJ to monitor progress.
