LIMITED ENGLISH PROFICIENCY Improving Access to Federally Conducted and Federally Assisted Programs and Activities OGC Civil Rights, Labor & Employment Law Policy Section

Who is a person with limited English proficiency? An individual who does not speak English as their primary language and who has a limited ability to read, write, speak, or understand English, can be considered limited English proficient, or “LEP.”

What protections are available to individuals who are limited English proficient? Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq., as amended (Title VI) 7 C.F.R. § 15.3(b)(2) Executive Order 13166

Who Must Comply and Who Can be Found in Violation? All programs and operations of entities that receive assistance from the federal government (i.e. recipients), including: State agencies Local agencies Private and nonprofit entities Sub-recipients (entities that receive federal funding from one of the recipients listed above) also must comply. All programs and operations of the federal government also must comply.

Lau v. Nichols, 414 U.S. 563 (1974) Class action brought by non-English speaking students of Chinese origin against the San Francisco school district seeking relief against unequal educational opportunities. The district offered instruction only in English. The school district received federal financial assistance. Alleged violations: Fourteenth Amendment - Equal Protection Clause Civil Rights Act of 1964, 42 U.S.C. § 2000d (Title VI)

Lau v. Nichols The Supreme Court decided the case solely on Title VI grounds. The Supreme Court held that the school system’s failure to provide Chinese-speaking students with English language instruction, denied them meaningful opportunity to participate in the public educational program in violation of Title VI and the applicable HEW regulations. The school district was required to take reasonable steps to provide students with a meaningful opportunity to participate in federally funded educational programs.

National Origin Discrimination? The “failure to ensure that LEP persons can effectively participate in or benefit from Federally assisted programs and activities” may constitute national origin discrimination. U.S. Dept. of Justice, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455, 41,457 (June 18, 2002).

Other Federal Agencies Yes. Federal agencies have implemented Title VI regulations that follow the DOJ regulations and have consistently construed Title VI’s prohibition on both intentional and disparate-impact discrimination to require that recipients of federal financial assistance provide meaningful access for LEP persons. See, e.g., 28 C.F.R. § 42.405(d)(1); Department of Health and Human Services (HHS) Notice, 35 Fed. Reg. 11,595 (1970); 45 Fed. Reg. 82,972 (1980);

Executive Order 13166 On August 11, 2000, President Clinton signed Executive Order 13166 -“Improving Access to Services for Persons with Limited English Proficiency” Executive Order 13166 requires: Federal agencies to examine the services they provide and identify any need for services to those with limited English proficiency (LEP) Federal agencies to develop and implement a system to provide LEP persons with meaningful access to programs and services

Four-Factor Analysis Recipients of federal financial assistance have an obligation to reduce language barriers that can preclude meaningful access by LEP persons to important benefits, programs, information, and services. The starting point is an individualized assessment that balances the following four factors: 1. The number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee/recipient; 2. The frequency with which LEP individuals come in contact with the program; 3. The nature and importance of the program, activity, or service provided by the program to people's lives; and 4. The resources available to the grantee/recipient and costs.

Develop a Language Assistance Implementation Plan (LEP Plan) Five steps in designing a LEP Plan: Identify LEP individuals who need language assistance Identify the ways the language assistance will be provided Train staff Provide notice to LEP persons Monitor and update LEP Plan

Identifying LEP Individuals Who Need Language Assistance The first two factors in the four-factor analysis require an assessment of the number or proportion of LEP individuals eligible to be served or encountered and the frequency of encounters. This requires recipients to identify LEP persons with whom it has contact. One way to determine the language of communication is to use language identification cards (or "I speak cards"), which invite LEP persons to identify their language needs to staff. The federal government has made a set of these cards available on the Internet. The Census Bureau "I speak card" can be found and downloaded at http:// www.usdoj.gov/crt/cor/13166.htm. When records are normally kept of past interactions with members of the public, the language of the LEP person can be included as part of the record. Posting notices in commonly encountered languages notifying LEP persons of language assistance will encourage them to self-identify.

(2) Language Assistance Measures An effective LEP plan would likely include information about the ways in which language assistance will be provided. For instance, recipients may want to include information on at least the following: -- Types of language services available. -- How staff can obtain those services. -- How to respond to LEP callers. -- How to respond to written communications from LEP persons. -- How to respond to LEP individuals who have in-person contact with recipient staff. -- How to ensure competency of interpreters and translation services.

(3) Training Staff Staff should know their obligations to provide meaningful access to information and services for LEP persons. An effective LEP plan would likely include training to ensure that: Staff know about LEP policies and procedures. Staff having contact with the public are trained to work effectively with in-person and telephone interpreters. Recipients may want to include this training as part of the orientation for new employees. It is important to ensure that all employees in public contact positions are properly trained. The more frequent the contact with LEP persons, the greater the need will be for in-depth training. Staff with little or no contact with LEP persons may only have to be aware of an LEP plan.

(4) Providing Notice to LEP Persons Once an organization has decided, based on the four factors, that it will provide language services, it is important for the recipient to let LEP persons know that those services are available and that they are free of charge. Recipients should provide this notice in a language LEP persons will understand. Examples of notification that recipients should consider include: Posting signs in intake areas and other entry points. When language assistance is needed to ensure meaningful access to information and services, it is important to provide notice in appropriate languages in intake areas or initial points of contact so that LEP persons can learn how to access those language services.

NOTICE EXAMPLES For instance, signs in intake offices could state that free language assistance is available. The signs should be translated into the most common languages encountered. They should explain how to get the language help. Announcements could be in, for instance, brochures, booklets, and in outreach and recruitment information. These statements should be translated into the most common languages and could be "tagged" onto the front of common documents. Working with community-based organizations and other stakeholders . Using a telephone voice mail menu. The menu could be in the most common languages encountered. It should provide information about available language assistance services and how to get them.

(5) Monitoring and Updating the LEP Plan Recipients should, where appropriate, have a process for determining, on an ongoing basis, whether new documents, programs, services, and activities need to be made accessible for LEP individuals, In addition, recipients should consider whether changes in demographics, types of services, or other needs require annual reevaluation of their LEP plan. Less frequent reevaluation may be more appropriate where demographics, services, and needs are more static. One good way to evaluate the LEP plan is to seek feedback from the community. In their reviews, recipients may want to consider assessing changes in: Current LEP populations in service area or population affected or encountered. Frequency of encounters with LEP language groups. Nature and importance of activities to LEP persons. Availability of resources, including technological advances and sources of additional resources, and the costs imposed. Whether existing assistance is meeting the needs of LEP persons. Whether staff knows and understands the LEP plan and how to implement it. Whether identified sources for assistance are still available and viable.

Types of Language Services Oral Interpretation - listening to something in one language and orally translating it into another language Items to consider: Competence of interpreters Hiring bilingual staff Hiring staff interpreters Contracting for interpreters Using telephone interpreter lines Using community volunteers Using family member, friends, and others Competent language services should be free The use of family and friends is not preferable and should only be used when certified or other qualified interpreters/translators are not available. The use of children as interpreters is frowned upon and should be used only as a last resort.

Types of Language Services Written Translation - the replacement of a written text from one language (source language) into an equivalent written text in another language (target language) Items to consider: Determine what documents should be translated Determine what languages apply Competence of translators Documents on websites

Vital Documents It is particularly important to ensure that vital documents are translated into the non-English language of each regularly encountered LEP group eligible to be served or likely to be affected by the program or activity. A document will be considered vital if it contains information that is critical for obtaining federal services and/or benefits, or is required by law. Vital documents include, for example: applications, consent and complaint forms; notices of rights and disciplinary action; notices advising LEP persons of the availability of free language assistance; written tests that do not assess English language competency, but rather competency for a particular license, job, or skill for which English competency is not required; and letters or notices that require a response from the beneficiary or client.

Best Practices STRONG LANGUAGE ACCESS COORDINATION AND ACCOUNTABILITY: Appoint an agency limited English proficiency (LEP) Coordinator or, in large agencies, a working group of individuals from different components to monitor/update the agency’s response to LEP needs. Monitor agency compliance by ensuring staff cooperation and accountability. Conduct regular trainings on LEP access: All staff should be aware of your agency’s LEP Plan, especially those who encounter the public.

Best Practices 2. EFFECTIVE NEEDS ASSESSMENT: Survey client constituencies and chart their needs by tracking LEP encounters, conducting focus groups with client constituencies/stakeholders, and obtaining customer feedback via surveys or other methods. Use the information obtained from client constituencies to target language access efforts to priority services and locations.

Best Practices 3. RELIABLE ACCESS TO DISASTER AND EMERGENCY PREPAREDNESS INFO: Disaster and emergency preparedness should always be a priority focus for language access efforts.

Best Practices 4. EFFICIENT RESOURCE UTILIZATION: Share resources within and across agencies, e.g., by forming regional and interagency partnerships. Utilize bilingual employees effectively and appropriately: Avoid assumptions about competence and willingness of bilingual staff to provide language services. Once you have identified competent and willing bilingual staff, ensure that they are strategically posted. Leverage community‐based organizations for interpretation and translation assistance, provided that quality control procedures are utilized. Bilingual employees are not always qualified to act as interpreters or translators. Do not make assumptions. A certified interpreter/translator is preferable to a bilingual employee. Also, do not assume that a bilingual employee can effectively communicate with a customer because they speak the same language because they may speak different dialects. For example, a Spanish-speaking person from Mexico may use different vocabulary than a person from Puerto Rico.

Best Practices 5. MEANINGFUL ACCESS TO WEB‐BASED INFORMATION: Non‐English web pages should be a priority, not an afterthought: Make them easy to locate and navigate. Non‐English language web pages should serve as a “one‐stop shop” for agency information. Web pages should be available in, at a minimum, Spanish and other top languages. Do not use or offer web‐based translation services. Translations through such services have been found to be unacceptably inaccurate.

Best Practices 6. CONSISTENT ENFORCEMENT OF QUALITY CONTROL STANDARDS: Follow the suggestions above related to ensuring competence of bilingual staff, interpreters, and translators; accuracy of web‐based information and translations in non‐English languages; and reliance on customer feedback. Avoid ad hoc approaches when faced with LEP encounters by ensuring staff familiarity with your LEP plan, as discussed. Reliance on an LEP individual’s family and/or friends for interpretation and translation, whether on an ad hoc basis or as part of your agency’s general language assistance strategy, is inappropriate. Generally, family and friends should not be used for language assistance, except in certain emergency situations while awaiting a qualified interpreter, or where the information sought to be conveyed is of minimal importance to the LEP person. Agencies may also need to rely on family members when the customer speaks a language for which the agency does not provide LEP services (i.e., they speak a language that the agency does not regularly encounter).

Best Practices 7. VALUING COMMUNITY PARTNERSHIPS: Enlist the cooperation of community and ethnic organizations for interpretation and translation assistance, e.g., to review translations and non‐English web pages for accuracy and tone, as long as quality control measures are used. Community organizations can help federal agencies to determine their language access priorities by identifying the services and information most frequently accessed or “in demand” by various language communities. Community organizations can help agencies assess the effectiveness of their language access plan by providing honest feedback. Community organizations can be a source of “good publicity” for agency language access efforts by informing LEP community members of agency services and the manner in which your agency is striving to meet LEP needs.

Best Practices 8. EFFECTIVE MARKETING OF LANGUAGE ACCESS PROGRAMS: In order to access your services, LEP individuals must know about them: Market language access programs to target communities. Attend seminars, symposia, and community health fairs, and inform ethnic media and culturally diverse media outlets of your agency’s commitment to language access.

Best Practices 9. CREATIVE APPROACHES TO BUDGET AND FUNDING: Charting LEP encounters provides “hard data” in support of requests for LEP resources, including hiring of bilingual personnel, obtaining funding for interpretation/translation, etc. Tie LEP efforts to the mission of the larger agency to enable budgeting for LEP access when it falls in line with mission‐critical objectives (such as national security or emergency preparedness).

Best Practices 10. INVOLVEMENT IN THE FEDERALLY CONDUCTED COMMITTEE AND OTHER ACTIVITIES OF THE FEDERAL INTERAGENCY WORKING GROUP ON LEP: Your suggestions and input go a long way: Contact the Federally Conducted Committee by calling the Civil Rights Division’s Coordination and Review Section at (202) 307‐2222

Where can I find LEP resources? www.lep.gov community-based organizations and universities other Federal agencies- ex. DHS has new regulations published http://www.lep.gov/resources/2011_Language_Access_Assessment_and_Planning_Tool.pdf