In difficult economic times, it is reasonable that governments look for ways to cut spending and streamline their programs for delivering aid, training, benefits, or services to the public. These programs affect all of us from development and maintenance of the roads and public transit systems we use to our educational institutions, health care systems, employment services, disaster preparedness activities, and many others. Sometimes, however, these streamlining measures have the effect of excluding qualified people from participating in the programs. Thus, as we work towards more efficient, streamlined operations of these programs, we must guard against excluding segments of the populations we serve. We can do this through creative governing.
The unemployment insurance program
To illustrate some of the points in this paper, we’ll use the unemployment insurance (UI) program as an example. This is a federally funded program operated by states across the country. Benefits provided through this federal-state program are only temporary and partial. Notably, UI benefits offer partial wage replacement only for those individuals who are unemployed through no fault of their own and who demonstrate continuing efforts to obtain employment. This program is not available to unemployed persons who quit or retired, or who were fired; rather, a person who is unemployed involuntarily, i.e. laid off because an employer closed, moved, or downsized, is eligible to apply for UI benefits. During this time of unemployment, UI funds are used to pay critical bills and put food on the table. And, the benefits stop after a certain time period regardless of whether the person has transitioned to new employment.
Florida’s program—a useful case study
It is against this backdrop that we take a look at Florida’s UI program and the adverse effects of Florida’s recent streamlining measures in the application process on certain persons who are limited English proficient (LEP) and persons who are disabled. Of relevance here, since August 2011, Florida discontinued telephonic filings for UI benefits in favor of an online application system, and it instituted a 45 question skills assessment test for anyone seeking to apply for UI benefits.
While many folks in Florida have been able to navigate the online UI system and, undoubtedly, it has streamlined the application process overall, this method of delivering UI benefits presents barriers to certain LEP persons and persons with disabilities. Keep in mind that, as with anyone else entitled to apply for UI benefits, we are focusing on folks who were gainfully employed and lost their jobs through no fault of their own.
The Miami Workers Center (MWC), a non-profit group that serves as a “strategy and organizing center for low-wage workers”, was the first to notify the U.S. Department of Labor (DOL) of problems with Florida’s new streamlined system of delivering UI benefits. In a complaint filed with DOL’s Civil Rights Center (CRC) on November 18, 2011, MWC alleged national origin and disability-based discrimination in violation of federal civil rights laws stemming from Florida’s discontinuation of telephone filings and its institution of the skills assessment questionnaire in the UI benefits program.
Then, by letter dated May 18, 2012, Florida Legal Services, Incorporated (FLS) and the National Employment Law Project (NELP) stepped in and presented these concerns to Secretary of Labor Hilda Solis and other high-ranking government officials. FLS/NELP compiled statistics in support of its position that Florida’s UI benefits delivery system violated the nondiscrimination mandates of Title VI and the disability statutes. FLS/NELP states, in part, the following to Secretary of Labor Solis:
The new online filing requirements and individual skills review were instituted on August 1, 2011. Since then, average new initial claims and first payments in Florida have experienced disproportionate declines relative to the national level, despite the fact that statewide unemployment has dropped below 9.0 percent. From July 2011 to January 2012, initial claims in Florida declined by 15.7 percent, while first payments dropped by 23.4 percent. By comparison, initial claims and first payments declined by just 5.2 percent nationwide. Both have continued to decrease at a faster rate in Florida over the first two months of 2012.
Certainly, Florida is not alone in its efforts to balance its budget through streamlining government programs, such as the UI benefits program. Every jurisdiction across our country struggles with these same issues.
Indeed, efforts to streamline and operate programs more efficiently are very worthwhile avenues to economic recovery. On the other hand, denying access to services, aid, training, or benefits because of how a person speaks or looks, or because the person has a visual impairment or hearing impairment not only runs afoul of federal civil rights laws but, as a practical matter, it is not a workable solution for sustained economic recovery.
In order to rebuild a strong tax base and experience more spending for local goods and services, government programs should be operated with an eye on the bigger picture; that is, to serve each and every member of the public who qualifies for the program. It isn’t going to buttress Florida’s local economy to leave LEP persons or persons with disabilities behind, or to marginalize their participation in the UI benefits program. Rather, exclusion or marginalization of these folks will create a greater divide in Florida’s population and fracture a weak economy as opposed to building a stronger community that moves forward with the times.
As an initial matter, as we discuss the delivery of any government program, such as the UI benefits program, it is important to understand the obligations imposed by Title VI of the Civil Rights Act of 1964 and the disability-related statutes at Section 504 of the Rehabilitation Act of 1973 and the Americans With Disabilities Act Amendments Act. Together, these laws require nondiscrimination and equal opportunity on the bases of race, color, national origin, and disability.
Often, there are extra measures that must be in place to ensure nondiscrimination for LEP persons and persons with disabilities. Moreover, these extra measures must be provided at no cost to them. This holds true regardless of whether we talk about serving one or 1,000 LEP folks, or one or 1,000 folks with disabilities (visual, hearing, mobility, cognitive, and so on) who come through your doors.
At first blush, this may seem like an overwhelming task, but it does not have to be. The following steps offer a roadmap for delivering efficient and effective services to the public on a limited budget.
√ Understand your demographics.
Take a look at census and other demographic data to acquire a basic understanding of the composition of your service populations. This, in turn, will inform you of major language needs as well as of the types of auxiliary aids and services necessary to deliver your programs.
Demographic data is useful in conducting outreach so that all members of your service population, regardless of national origin or disability, have access to your programs and activities. You’ll want to make sure notices, posters, and brochures about your programs are prominently displayed in the public areas of your physical facilities as well as throughout your website.
For example, in Florida, posters, brochures, and notices informing the public of the programs offered and of their rights with respect to these programs should be prominently displayed in the languages of English, Spanish, and Creole. And, for folks who speak another language, there should be a well-publicized way for them to gain access to the programs, such as a language line. Moreover, auxiliary aids and services must be available to persons with disabilities, such as persons with visual and hearing impairments. And, folks with disabilities should be informed regarding how to request and receive auxiliary aids and services.
Prominently displayed notices, posters, and brochures serve to advise the public and your staff of federal obligations to serve LEP and disabled populations.
√ Know your program.
Critical to understanding how to prevent discrimination and comply with civil rights laws is your knowledge of the federally funded programs and activities you offer. These programs and activities are generally divided into four categories:
● benefits; and
Knowing a program or activity requires an understanding of its “essential eligibility requirements” as well as the policies and procedures in place to deliver the program or activity.
For example, in the case of Florida’s UI benefits system, policymakers should go through the specific steps of this program from the perspectives of a person who is LEP, or a person with a disability. There are some practical questions to ask in this exercise. Where do you go? Who do you meet? What forms must be completed? What do you do if you have a question, or need assistance filling out the forms? Who makes the decisions? How is a person notified of the decision? What if the person has questions about the decision?
If you go through this process and aren’t able to answer questions like these, odds are your program won’t be accessible to certain members of the LEP and disabled populations.
√ Know the baseline methods for providing access.
There are several mechanisms available to you in serving your LEP population, such as:
● Language identification posters and/or “I speak” cards or booklets;
● Bilingual or multilingual staff
● Qualified interpreters
● Telephonic interpretation service (also known as the “language line”)
And, “auxiliary aids and services” encompass a wide variety of tools that you may use to assist persons with disabilities, including:
● Qualified readers
● Taped texts
● Audio recordings
● Brailled materials
● Large print materials
● equipment, devices, and software (such as assistive hearing devices, speech recognition software, and so on)
● TDD/TTY or telephone relay service. Keep in mind that any communication containing your telephone number must also include the TDD/TTY number or the number of the relay service you use. You must also make sure these numbers are operational and staff is trained regarding their use.
● Qualified sign language interpreters
With the foregoing accessibility measures in mind for LEP and disabled populations, let’s take a look at some places where you may find help.
√ Tap the resources in your community.
Look around your state or local community to uncover potential support networks. Some ideas are:
● Colleges and universities
● Advocacy groups and non-profit organizations whose membership includes LEP persons and/or persons with disabilities
● Tribal organizations and associations
● Community-based and faith-based
● Private companies
● Social organizations
Amazingly, these entities offer a treasure trove of resources that often go untapped. Build bridges with these folks through partnerships, cooperative agreements, collaborative arrangements, and the like.
For example, qualified students from colleges and universities could serve as interpreters (including sign language) and translators at your public locations for course credits as opposed to cash. Check with the career development office to explore this possibility. And, faculty and staff at these educational institutions may volunteer time at your public locations, or they may be able to conduct training for those interested in becoming qualified interpreters and translators.
For indigenous populations, check with area tribal associations and organizations. They can bring a wealth of knowledge and resources to the table to help you serve these populations. Moreover, they may be able to assist you with outreach and with translation of important program notices, posters, and brochures.
Area advocacy groups are very dedicated to promoting the interests of their members. Consult with them in developing streamlining initiatives. They will be the first ones to identify potential barriers for you, and they can provide useful ways to overcome existing barriers. Indeed, some of their members may volunteer their time to assist you in serving persons with disabilities and LEP persons. Or, their members may be able to train your staff in how to serve these populations.
Take a close look at private companies in your community. They have a vested interest in the success of the economy. Many companies encourage volunteer or public service work among their employees. For example, companies that conduct business overseas most likely have some employees who speak other languages. Travel companies also often have multilingual staff.
For persons with disabilities, check with organizations like Best Buddies. This non-profit organization describes its mission as “to establish a global volunteer movement that creates opportunities for one-on-one friendships, integrated employment and leadership development for people with intellectual and developmental disabilities.” In other words, this organization is well-connected in the business community, local and global, and it will have access to area businesses that employ people with disabilities as well as folks who speak other languages.
The foregoing list of resources encompasses only a few of the possibilities in your community. The key is building relationships in your community that are wide and deep. For a higher volume of LEP persons and persons with disabilities, you may be able to schedule qualified volunteers or students working for school credits at your public facilities to assist members of these populations. On the other hand, if there are fewer persons speaking a certain language, or fewer persons with disabilities, you may want to develop a directory of folks willing and able to assist on shorter notice. Make sure that any resources developed along these lines are well-known to your front line staff; that is, the folks who meet and greet the public, oversee registration, or conduct intake for a program.
√ Take advantage of free federal government resources.
The U.S. Department of Justice’s (DOJ) website at www.lep.gov and the DOL’s website at www.dol.gov/odep are outstanding starting points to learn about serving LEP and disabled populations. These websites warehouse guidance, memoranda, and a multitude of other resources from federal, state, and local agencies to help you better serve LEP persons and persons with disabilities. You’ll find notices and posters for LEP persons and persons with disabilities as well as “I speak” cards and booklets. You’ll see what other jurisdictions are doing to serve their populations and learn about “best practices” in this area.
√ Look at other agencies in your state.
Pooling resources and sharing costs are only two of the advantages of inter-agency connections to better serve LEP and disabled persons. You also may find some new approaches to delivering your programs that not only save money, but get the job done. And, you may learn how to avoid instituting delivery processes that exclude members of these populations.
One recent case illustrates this point. Posted on the website, www.lep.gov, is the May 2010 “Memorandum of Agreement” (MoA) between DOJ and The Palm Beach County Sheriff’s Office resolving a complaint that the Sheriff’s Office “failed to provide language assistance measures to ensure effective communication” and it did not have “appropriate plans and procedures for providing meaningful access to information, services, proceedings, and other portions of its program and activity for persons who are” LEP. The MoA sets forth a variety of mechanisms the Sheriff’s Office would use to meet its LEP obligations, including:
● Placing a language identification poster in the intake area
● Providing language verification by qualified bilingual staff
● Making use of a qualified interpreter
● Utilizing “I speak” booklets
● Using a telephonic interpretation service (language line)
Indeed, this MoA provides an example of the difficulty of ensuring access for LEP persons:
Although Spanish is a common language of persons from Latin America, many persons from this area speak another language as their primary language. For example, persons from Guatemala speak more than 20 different languages including Kanjobal and Q’echi’, but may be mistaken as Spanish speakers. Given that many times these individuals are somewhat familiar with Spanish, but not fluent in either Spanish or English, it is critical to identify the primary language of the LEP person.
Although this MoA is between DOJ and The Palm Beach County Sheriff’s Office, its guidance is useful to any state or local jurisdiction across the country serving LEP populations. Importantly, it reflects DOJ’s stance on the issue of serving LEP populations and DOJ is the lead federal agency charged with enforcement of Title VI of the Civil Rights Act.
√ Consider the practices of neighboring states.
In addition to collaborating and networking within your service community, touch base with your counterparts in neighboring states to learn how they serve LEP and disabled populations. So, for example, folks operating Florida’s UI program can touch base with their counterparts in Georgia, Alabama, and South Carolina to see how those jurisdictions are delivering UI benefits to LEP and disabled populations. Or, for a wider perspective, the National Organization of State Workforce Agencies (NASWA) at www.naswa.org offers resources and spotlights “best practices” that you may find useful.
√ Focus on your front lines.
Once you have reviewed your programs and activities and ensured that your delivery procedures comply with federal civil rights laws, you must train responsible staff. The best laid plans will not be worth the paper they are written on if responsible staff don’t know them, ignore them, deviate from them, or apply them inconsistently. You will want to conduct initial and continuing training so that staff understands how to access and utilize the resources you have developed for them.
Keep in mind that complaints of discrimination based on “disparate impact” generally arise from deficiencies in the essential eligibility requirements for a program or activity, or in the policies and procedures used to deliver it. One example of this is MWC’s complaint alleging that Florida’s UI benefits delivery process (i.e. discontinuation of telephone filings and institution of a skill assessment questionnaire) renders the program inaccessible to certain LEP and disabled populations.
On the other hand, complaints of “disparate treatment” generally stem from responsible staff treating one person differently than other persons because of how s/he looks, speaks, dresses, or the like. So, in our example, once Florida policy-makers figure out a system to provide access to any LEP or disabled person, it will be up to staff on the ground to make sure that process is followed. Therefore, after sound policies and procedures and proper essential eligibility requirements for a program are developed, regularly training responsible staff is the next critical step.
Make sure staff knows about the LEP interpretation and translation resources that are available as well as the auxiliary aids and services available to persons with disabilities. And, staff must know how to access these resources and services when needed.
MWC’s complaint and the FLS/NELP letter point out an example where a man with a hearing impairment went to a One Stop Career Center in Miami seeking assistance in applying for UI benefits. He requested sign language interpretation services but, after three hours of waiting, no one came to assist the man and he left. In the end, he was denied access to the program because of his hearing impairment.
Here, as we discussed earlier, the Miami-based One Stop Career Center may consider preparing a directory of specific contacts that are willing and able to help ensure people with hearing impairments are served at the Center. For example, the Florida Association for the Deaf, Incorporated (FAD) consists of numerous affiliated clubs and associations as noted on their website at www.fadcentral.org/deafresources.
Leadership at the One Stop Career Center involved in MWC’s complaint may seek to contact organizations, such as FAD, that are located in or near their service area and develop formal agreements or arrangements to assist in serving the hearing impaired population. With specific agreements or arrangements in place, the Center’s leadership could then make sure that front line staff, such as the greeter and receptionist, has this up-to-date directory of specific names and phone numbers to call.
√ Be nimble.
The demographics of this country are constantly changing. Keep an eye on the composition of your service population. Make sure your outreach efforts and ability to serve move in tandem with the population’s composition.
Keep your language resources and auxiliary aids and services resources current. Develop and maintain the relationships with other agencies and with organizations, advocacy groups, tribal associations, and companies in your community. Make sure your front line staff has up-to-date listings of resources for serving LEP and disabled populations.
And, keep in mind that technology is constantly changing. While Florida’s online system for delivering UI benefits may not be available to certain LEP and disabled populations today, this does not mean that such limitations in the online system will exist down the road. Keep a lookout for hardware and software developments that may help you streamline your programs while, at the same time, providing service to all segments of your population.
Seena Foster is an attorney, certified mediator, and award-winning author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination.” Her book received 5 out of 5 star ratings from reviewers of Readers Favorite. Ms. Foster is a Partner with Title VI Consulting in Alexandria, VA. You may visit her website at www.titleviconsulting.com, or order her book at www.amazon.com.