Title VI of the Civil Rights Act of 1964 (Title VI) mandates nondiscrimination and equal opportunity on the basis of national origin in all federally funded programs and activities. A few examples of “national origin” include, but are not limited to, Mexican, Ukranian, Turkish, Filipino, Arab, Greek, American Indian, Cuban, Vietnamese, Kurdistan, Armenian, and Roma (gypsies).
The U.S. Department of Justice explains that denial of access by Limited English Proficient (LEP) persons generally constitutes national origin-based discrimination:
Discrimination on the basis of national origin can occur if a recipient does not provide appropriate language assistance to LEP individuals because these individuals, whose language is usually tied to their national origin, will not have access to the same benefits, services, information, or rights that the recipient provides to everyone else.
For further discussion of “basis”, see prior paper titled, “The ‘Basis’ of a Discrimination Complaint: What It Is and Why It’s Important.”
What does this mean for the Equal Opportunity professional? It means that, if you operate or administer federally funded programs and activities, you must provide meaningful access to persons who are LEP, also known in the educational community as English Language Learners (ELL).
For purposes of this paper, we’ll assume that you are the Equal Opportunity (EO) professional for an agency or organization offering programs and activities funded through Title I of the Workforce Investment Act (WIA), such as a One Stop Career Center or Job Corps Center. National origin-based discrimination is prohibited under WIA as well as Title VI.
The U.S. Department of Labor’s Civil Rights Center set forth its policy for providing meaningful access by LEP persons as supporting the following purpose:
To promote the economic well-being of workers and their families, help them share in the American dream through rising wages, pensions, health benefits and expanded economic opportunities, and foster safe and healthful workplaces that are free from discrimination, the United States Department of Labor (DOL) is committed to advancing the goals . . . (of improving access) by LEP individuals, who are often the most disenfranchised workers in the United States . . ..
The idea is LEP persons cannot be denied access to federally funded services, aid, benefits, or training simply because of their limited ability to speak, understand, read, or write English. Since your programs and activities are funded by a public that is comprised of people of all races, colors, national origins, religions, ages, genders, and the like, you cannot deny meaningful access to the programs and activities on the basis of any of these class characteristics.
How is it done?
How is access to LEP persons provided? Primarily through bilingual staff and/or interpretation and translation services.
Bilingual staff as well as interpretation and translation services can be a costly business and, with budget and staff shortages in a difficult economy, it may seem an impossible task. It important to know, however, that you must provide access to any LEP person at no charge to that person as a matter of federal law. And, there is no waiver or exemption based on cost or other asserted hardship.
Each federal funding agency will have regulations and guidance regarding a recipient’s obligations to provide LEP persons access to programs and activities. One example is the WIA-related regulations issued by the U.S. Department of Labor at 29 C.F.R. § 37.35:
What are a recipient’s responsibilities to provide services and information in languages other than English?
(a) A significant number or proportion of the population eligible to be served, or likely to be directly affected, by a WIA Title I-financially assisted program or activity may need services or information in a language other than English in order to be effectively informed about, or able to participate in, the program or activity. Where such a significant number or proportion exists, a recipient must take the following actions:
(i) The scope of the program or activity, and
(ii) The size and concentration of the population that needs services or information in a language other than English; and
(2) Based on those considerations, take reasonable steps to provide services and information in appropriate languages. This information must include the initial and continuing notice required under §§ 37.29 and 37.30, and all information that is communicated under § 37.34.
(b) In circumstances other than those described in paragraph (a) of this section, a recipient should nonetheless make reasonable efforts to meet the particularized language needs of limited-English-speaking individuals who seek services or information from the recipient.
29 C.F.R. § 37.35. For an idea of requirements at 29 C.F.R. §§ 37.29, 37.30 and 37.34, see prior paper titled, “’EO is The Law’ and ‘EEO is The Law’: Understanding Some of the Distinctions.”
Developing a strategy
As the EO professional for your organization, it is imperative that you develop a strategy for addressing the LEP needs of your beneficiaries and potential beneficiaries. For an excellent checklist to use in developing LEP policies and procedures in WIA-related programs and activities (such as unemployment insurance, Job Corps, employment referral services, on-the-job training), go to the National Association of State Workforce Agencies’ website at www.naswa.org.
√ Factors to consider
The U.S. Department of Justice has developed four factors to consider in developing your LEP strategy. First, research the number or proportion of LEP persons in your eligible service population. Second, determine the frequency with which LEP individuals come into contact with a program or activity at your location. Third, assess the importance of the benefits, service, aid, training, or information to the LEP person, including consequences stemming from the lack of adequate interpretation or translation services. Finally, look at resources available to you and the costs of providing various types of language services.
√ You must have procedures in place for handling LEP needs
If you operate federally funded programs and activities, you must develop sound policies and procedures for communicating with LEP persons. For further discussion of the importance of policies and procedures, see prior paper titled, “The Importance of ‘The Script’.” Many federal agencies provide guidance regarding how to structure these policies and procedures. For example, the U.S. Department of Labor states that any sound plan will include the following:
● Determining your language services needs;
● Training staff so they know how to access and utilize resources;
● Implementing and enforcing quality control measures (including monitoring) to ensure accurate and effective communication with LEP persons; and
● Conducting outreach to ensure that all community members, regardless of national origin or language, have access to your programs and activities.
And, once developed, you’ll want to revisit these policies and procedures to update them as demographics, language resources, and other factors change.
√ Research the demographics
Start with researching the demographics of the population of your beneficiaries and potential beneficiaries. Look at data from the United States Census (including American Factfinder, which is the Bureau’s interactive demographic mapping service), data collected by federal agencies for your area (including demographic data found at www.lep.gov), data collected by your EO leadership and state agencies, data available through community-based and faith-based organizations in your community, and your own common sense, experiences, and observations. You’ll find that the U.S. Department of Education website contains data pertaining to languages spoken in your local public school systems. Additionally, the U.S. Department of Labor’s Employment and Training Administration maintains language data by state or workforce area at www.doleta.gov. From this research, you may find that certain language groups will begin to take shape for your service area.
Compare what you find from this research with the composition of folks coming through your doors. Is the percentage of LEP persons coming to you for services, aid, benefits, or training less than what your research suggests that it should be?
For example, let’s assume that the United States Census data shows that 30 percent of your state’s population are LEP Spanish-speaking individuals. You look at data for your location and find that Spanish-speaking LEP persons constitute 7 percent of the folks you serve. Why?
There are a couple of possibilities. First, it may be that you need to conduct additional outreach for this population with materials written in Spanish and broadcast communications in Spanish for those who may have difficulty reading their native language. You could check with organizations and advocacy groups and ask for their assistance, both in terms of translating materials and disseminating the information.
In the alternative, it may be that your location is not in the vicinity of these LEP persons; rather, the majority of their community is located elsewhere in your state. Knowing the demographics of your service area is a critical step in developing an effective LEP plan.
√ Target the documents in need of translation
Turning to your brochures, applications, enrollment forms, notices, orientation documents, and other written material, translation of these documents may be prioritized based on their importance.
For example, anyone offering federally funded programs and activities will find a “Know Your Rights” brochure, developed by the U.S. Department of Justice, which is available in multiple languages at www.lep.gov. And, each federal agency will offer certain critical documents that you may use for the programs and activities they fund. For example, the Social Security Administration has certain critical forms available to LEP persons in a number of languages at www.ssa.gov/multilanguage.
Moreover, the U.S. Department of Justice has a checklist for prioritizing documents for translation, which provides the following guidance:
Agencies should prioritize translating vital documents. A document will be considered vital if it contains information that is critical for accessing the agency’s program or activities, or is required by law. Vital documents include, but are not limited to:
● Documents that must be provided by law;
● Complaint, consent, release or waiver forms;
● Claim or application forms;
● Conditions of settlement or resolution agreements;
● Letters or notices pertaining to the reduction, denial, or termination of services or programs or that require a response from the LEP person;
● Time-sensitive notice, including notice of hearing, upcoming grand jury or deposition appearance, or other investigation or litigation-related deadlines;
● Form or written material related to individual rights;
● Notice of rights, requirements, or responsibilities; and,
● Notices regarding the availability of free language assistance services for LEP individuals.
For less critical documents, which do not substantively affect the rights of beneficiaries or potential beneficiaries, you may provide translation or interpretation on an as-needed basis.
√ Make informed decisions
Once you understand the demographics of your beneficiaries and potential beneficiaries, you can make informed decisions regarding the interpreter and translation services you need. For example, if you have a significant population of French-speaking LEP persons as beneficiaries or potential beneficiaries, it may be cost-effective to hire bilingual staff. If this is an option for you, make sure you provide access to interpreter/translator training courses since your goal is to provide “effective and accurate” communication.
On the other hand, if you have a small LEP population in your area, it may be more cost-effective to utilize contract translation and interpretation services on an as-needed basis. Professional interpreters and translators are highly trained and constitute a pool of qualified individuals to turn to when needed.
Keep in mind that you must provide access to LEP persons free of charge, regardless whether LEP persons of a particular language comprise a high percentage of your beneficiaries or potential beneficiaries, or they are few (or one) in number.
√ Focus on the front lines
Too often, folks on the front lines of your location are not sufficiently trained and do not have adequate resources to greet LEP beneficiaries or potential beneficiaries from the moment they come through your door. Make sure these key personnel have materials in appropriate languages as well as “I speak” cards or the like (understanding that written methods of communication will not work for folks who are illiterate in their native language).
You may find “I speak” cards available through your federal funding agency or from the EO leadership of your state or territory. And, “I speak” cards are available through the United States Census Bureau.
Although cost-effective measures may force you to focus your interpretation and translation efforts initially on larger LEP populations, it bears repeating that you are obligated, by law, to serve any LEP individual who comes through your door. For this reason, it is good to have “I speak” cards and procedures in place for properly directing LEP persons, such as through use of language phone lines, bilingual staff, contracts for language services, or area faith-based and community-based organizations and advocacy groups.
Avenues of resources
Despite the challenges of staff and budget limitations, there are multiple avenues of translation and interpretation resources available to you. The keys are leveraging low or no cost services through research and relationship-building.
√ The U.S. Department of Justice
Take a look at the guidance and resources available at www.lep.gov. This is a U.S. Department of Justice-sponsored website that serves as a central location for numerous federal, state, and local LEP-related resources, best practices, and guidance.
√ Your federal funding agency
Every federal agency has a civil rights office. Based on the federal agency that funds the programs and activities you offer, go to that agency’s civil rights office and see what resources and guidance they have to offer you. If you receive funding from multiple federal agencies, check with each of their civil rights offices separately. By taking advantage of these resources, you will not need to “reinvent the wheel” so to speak.
For example, the U.S. Department of Labor’s Civil Rights Center (CRC) offers its required “Equal Opportunity is The Law” notice in multiple languages. Therefore, if you operate programs and activities funded through the WIA, you can pick up the required notice in certain languages from the CRC’s website. Check availability of LEP resources and guidance from a federal agency’s civil rights office to save time and money.
√ Your state or territory EO leadership
Make contact with the EO leadership of your state or territory. Find out what resources have been generated for LEP persons at that level. Often, the EO leadership will have certain commonly used forms, information, and notices available in other languages spoken in the state or territory.
And, for interpreter services, your EO leadership may be able to direct you to a list of approved contractors providing interpreter and translation services, or they may have a phone number dedicated to providing language services. Often, they will have “I speak” cards that you may use at your reception, enrollment, admission, or intake area so that your staff will be able to quickly determine the language spoken by the LEP person.
Also, every state and territory operating WIA-related programs and activities will have a document called the “Methods of Administration” (MOA). This document is signed by the Governor and it sets forth the means by which the Governor will ensure compliance with federal civil rights laws. Included in the MOA will be a discussion of your state’s or territory’s available LEP-related resources as well as procedures approved by your Governor to ensure that WIA-related benefits, aid, training, and services are accessible to LEP persons.
√ Partnerships with organizations and advocacy groups
Another avenue of providing LEP services at low or no cost to you is through developing and leveraging partnerships with community-based and faith-based organizations as well as advocacy groups. Often these entities have a direct interest and stake in helping you deliver benefits, services, aid, and training to their LEP constituents or members. They also serve as excellent avenues for outreach.
√ Partnerships with the business community
Taking time to research businesses in your area also can yield results. These businesses may be comprised of bilingual or multilingual employees who can volunteer time to help LEP persons in the community. Keep in mind that volunteers must understand applicable ethical and confidentiality obligations and must be trained to provide effective and accurate translations and/or interpretation services.
√ Partnerships with educational institutions
An excellent source of part-time (or even volunteer) translation and/or interpretation services is through local educational institutions. Because the demographics of your beneficiary population may be similar to demographics of the educational institutions in your area, you may find some interpretation and translation resources through networking with these educational institutions. Seek out relationships with undergraduate, graduate, and law students as well as staff at university language departments. Keep in mind that these folks must have training enabling them to provide accurate and effective communication and they must understand their obligations with regard to ethics and confidentiality. You’ll also want to make sure that they are familiar with any specialized terminology applicable to your program or activity.
√ The U.S. Equal Employment Opportunities Commission
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of national origin in your employment practices. And, Appendix C of the EEOC’s LEP Plan contains a list of community-based organizations across the country that provide language interpretation and translation services. These same organizations may prove invaluable to you as well.
And, while we are on the subject, let’s take a look at your employment practices with regard to LEP persons. The phrase “employment practices” includes recruitment, hiring, promotion, transfer, wages and benefits, work assignments, leave, training and apprenticeship programs, discipline, layoff, and termination. The EEOC states that it is illegal:
. . . to use an employment policy or practice that applies to everyone, regardless of national origin, if it has a negative impact on people of a certain national origin and is not job-related or necessary to the operation of the business.
Moreover, the EEOC mandates that an employment decision (such as hiring, termination, selection, or the like) cannot be based on an employee’s “foreign accent” unless the accent “seriously interferes with the employee’s job performance.” Here, the EEOC offers an example where it may be appropriate for the LEP-person not to be hired for a sales position requiring interaction with English-speaking customers, but may be hired to work in an office position, stockroom position, or the like, where such interaction is not required.
Finally, the EEOC also addresses the use of “English-only rules” in the workplace. Notably, this type of rule is “only allowed if it is needed to ensure the safe or efficient operation of the employer’s business and is put in place for nondiscriminatory reasons.” Some examples provided by the EEOC in support of an English-only rule in the workplace includes communication with customers, coworkers, or supervisors who only speak English, emergency situations where workers must speak a common language to promote safety, and cooperative work assignments in which workers must speak a common language to promote efficiency.
Seena Foster is an attorney and author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination.” Her book was judged by a panel of industry experts as an award-winning Finalist in the Business Reference category of the 2011 USA Best Books competition, sponsored by USA Book News. She is also a Partner with Title VI Consulting in Alexandria, VA. You may visit her website at www.titleviconsulting.com.