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-assisted programs and activities. A few examples of “national origin” include, but are not limited to, Mexican, Ukrainian, 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.
What does this mean for the Equal Opportunity professional? It means, if you operate or administer federally-assisted 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 Innovation and Opportunity Act (WIOA), such as an American Job Network center, or a Job Corps center. National origin-based discrimination is prohibited under Section 188 of WIOA (formerly Workforce Investment Act) as well as under 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-assisted 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 contract interpretation and translation services.
Bilingual staff as well as interpretation and translation services can be costly and, with budget and staff shortages in a difficult economy, it may seem an impossible task. It is important to keep in mind, 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 WIOA-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 WIOA 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.
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 WIOA-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’ Web site at www.naswa.org.
√ Four 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 area 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. Fourth, 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-assisted programs and activities, you must develop sound policies and procedures for communicating with LEP persons. 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 the language needs of your service area population;
● 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 in your community.
√ “English only” jurisdictions; federal law controls
If you are in a state or locality that has enacted “English only” laws (i.e. all business must be conducted in English), federal law controls over conflicting state or local law when operating federally-assisted programs or activities. So, for example, let’s say your state operates an unemployment insurance (UI) benefits program that is partially funded by the U.S. Department of Labor (DOL). Attached to these DOL dollars is a requirement, pursuant to WIOA Section 188 and Title VI, that you not discriminate on the basis of national origin (limited English proficiency). This, in turn, requires that an “English only” state or locality provide interpretation and translation services at no cost to each and every LEP customer throughout the UI process; that is, from initial application, throughout the hearing and appeals processes, and to the final determination.
√ 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 Bureau (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 Web site 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 census data shows that 30 percent of your service area’s population consist of LEP Spanish-speaking individuals. You look at data for your location and find that Spanish-speaking LEP persons constitute seven 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.
Second, your staff may not be trained or have the resources to assist LEP persons when they come through your doors. If you offer internet or telephone-based options, but these options are not translated or interpreted in other languages, then LEP populations in your service area will not have meaningful access to, and opportunity to participate in, your programs and activities. 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-assisted programs and activities will find a “Know Your Rights” brochure, developed by the U.S. Department of Justice, available in multiple languages at www.lep.gov. And, each federal civil rights agency will offer translations of certain critical documents used for the programs and activities they fund. The Labor Department’s Civil Rights Center offers the “Equal Opportunity Is the Law” notice in multiple languages at http://www.dol.gov/oasam/programs/crc/EOPosters.htm.
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. Often, your federal funding agency will have core, vital documents translated into certain languages for you. This commonly includes equal opportunity or nondiscrimination notices and notices to LEP populations that they are entitled to translation or interpretation services free of charge to allow their meaningful participation in your programs and activities. For example, the Labor Department’s CRC has issued guidance addressing what constitutes “vital” documents in UI benefits programs at: http://www.dol.gov/oasam/programs/crc/062013_DOL_UI_Webinar.pdf.
√ 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 in your service area, 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. Said differently, staff must be qualified and competent to provide interpretation and translation services.
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 or their equivalent 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 as well as at www.lep.gov.
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 Web site 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.”
For example, the U.S. Department of Labor’s CRC offers its required “Equal Opportunity is The Law” notice in multiple languages. Therefore, if you operate programs and activities funded through the WIOA, you can pick up the required notice in certain languages from the CRC’s Web site (http://www.dol.gov/oasam/programs/crc/).
√ The EO leadership of your state or territory
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. They also 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.
√ 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 efforts.
√ Partnerships with the business community
Taking time to research businesses and business associations (i.e. the Hispanic Chamber of Commerce) in your area also can yield results. These businesses and their associations 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 college or 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 (found at www.eeoc.gov) contains a list of community-based organizations across the country that provide language interpretation and translation services.
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.
√ About Seena Foster
Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at firstname.lastname@example.org, or visit her web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.
By way of background in this area, in 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews. Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.” And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.
With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster remains highly active in the field through her series of on-demand webcasts for equal opportunity professionals as well as through her mediation services, training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws. Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.” In 2007, Ms. Foster was certified as a mediator by the Virginia Supreme Court, and later obtained “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service.
Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School. She is a member of the Discrimination Law and Human Rights Law Committees of the International Bar Association. And, in November 2011, Ms. Foster was selected as a lifetime member of the Cambridge Who’s Who among Executives, Professionals, and Entrepreneurs based on her “accomplishments, talents, and knowledge in the area of civil rights.”