Guidance to Federal Financial Assistance
Recipients Regarding Title VI Prohibition
Against National Origin
Discrimination Affecting Limited English Proficient Persons
I.
Introduction
Most individuals living in the
Language for LEP individuals can be a
barrier to accessing important benefits or services, understanding and
exercising important rights, complying with applicable responsibilities, or
understanding other information provided by federally funded programs and
activities. The Federal Government funds an array of programs and activities
that can be made accessible to otherwise eligible LEP persons. The Federal
Government is committed to improving the accessibility of these programs and
activities to eligible LEP persons, a goal that reinforces its equally important
commitment to promoting programs and activities designed to help individuals
learn English. Recipients should
not overlook the long-term positive impacts of incorporating or offering English
as Second Language (ESL) programs in parallel with language assistance services.
ESL courses can serve as an important adjunct to a proper LEP plan. However, the
fact that ESL classes are made available does not obviate the statutory and
regulatory requirement to provide meaningful access for those who are not yet
English proficient. Recipients of Federal financial assistance have an
obligation to reduce language barriers that can preclude meaningful access by
LEP persons to important government assisted programs and activities.[1]
In certain circumstances, failure to ensure
that LEP persons can effectively participate in or benefit from federally
assisted programs and activities may violate the prohibition under Title VI of
the Civil Rights Act of 1964, 42 U.S.C. 2000d, and Title VI regulations against
national origin discrimination. The purpose of this policy guidance is to assist
recipients in fulfilling their responsibilities to provide meaningful access to
LEP persons under existing law.
This policy guidance clarifies existing legal requirements for LEP
persons by providing a description of the factors recipients should consider in
fulfilling their responsibilities to LEP persons.[2] These are the same criteria DOI will use
in evaluating whether recipients are in compliance with Title VI and Title VI
regulations.
There are many productive steps that the Federal government, either
collectively or as individual grant agencies, can take to help recipients reduce
the costs of language services without sacrificing meaningful access for LEP
persons. Without these steps, certain smaller grantees may well choose not to
participate in federally assisted programs, threatening the critical functions
that the programs strive to provide. To that end, the Department plans to work
with the Department of Justice to continue to provide assistance and guidance in
this important area and to identify and share model plans, examples of best
practices, and cost-saving approaches. An interagency working group on LEP has
developed a website, http://www.lep.gov/, to
assist in disseminating this information to recipients, Federal agencies, and
the communities being served.
Many commentators have noted that some have interpreted the case of Alexander v. Sandoval, 532 U.S. 275
(2001), as implicitly striking down the regulations promulgated under Title VI
that form the basis for the part of Executive Order 13166 that applies to
federally assisted programs and activities. We have taken the position that this
is not the case, and will continue to do so. Accordingly, we will strive to ensure
that federally assisted programs and activities work in a way that is effective
for all eligible beneficiaries, including those with limited English
proficiency.
II. Legal Authority
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d,
provides that no person shall “on the ground of race, color, or national origin,
be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance.” Section 602 authorizes and directs Federal agencies that are
empowered to extend Federal financial assistance to any program or activity “to
effectuate the provisions of [section 601] by issuing rules, regulations, or
orders of general applicability.” 42 U.S.C. 2000d-1. This guidance
document is thus published pursuant to Title VI, Title VI regulations, and
Executive Order 13166, and is consistent with the Department of Justice model
guidance.
Department of the Interior regulations promulgated pursuant to section
602 forbid recipients from “utilizing criteria or methods of administration
which have the effect of subjecting individuals to discrimination because of
their race, color, or national origin, or have the effect of defeating or
substantially impairing accomplishment of the objectives of the program as
respect to individuals of a particular race, color, or national origin.” 43 CFR 17.3(b)(2).
The Supreme Court, in Lau v.
Nichols, 414 U.S. 563 (1974), interpreted regulations promulgated by the
former Department of Health, Education, and Welfare, including a regulation
similar to that of the DOI, 43 CFR 17.3(b)(2), to hold that Title VI prohibits
conduct that has a disproportionate effect on LEP persons because such conduct
constitutes national-origin discrimination. In Lau, a
On
On that same day, the Department of Justice (DOJ) issued a general
guidance document addressed to “Executive Agency Civil Rights Officers” setting
forth general principles for agencies to apply in developing guidance documents
for recipients pursuant to the Executive Order. [Enforcement of Title VI of the Civil Rights
Act of 1964 National Origin Discrimination Against Persons with Limited English
Proficiency, 65 FR 50123 (
Subsequently, Federal agencies raised questions regarding the
requirements of the Executive Order, especially in light of the Supreme Court’s
decision in Alexander v. Sandoval,
532 U.S. 275 (2001). On
Pursuant to Executive Order 13166, DOJ developed its own guidance
document for recipients (“LEP Guidance for DOJ Recipients”) and initially issued
it in final on June 18, 2002 (67 FR 41455, also available at http://www.lep.gov/ ). Consistency among departments of the
Federal government is particularly important. Inconsistency or contradictory guidance
could confuse recipients of Federal funds and needlessly increase costs without
rendering the meaningful access for LEP persons that this Guidance is designed
to address. As with most government
initiatives, this requires balancing several principles. While this Guidance
discusses that balance in some detail, it is important to note the basic
principles behind that balance. First, we must ensure that
federally-assisted programs aimed at the American public do not leave some
behind simply because they face challenges communicating in English. This is of
particular importance because, in many cases, LEP individuals form a substantial
portion of those encountered in federally assisted programs. Second, we must achieve this goal while
finding constructive methods to reduce the costs of LEP requirements on small
businesses, small local governments, or small non-profits that receive Federal
financial assistance.
III. Who Is Covered?
Under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.,
and implementing regulations, recipients of Federal financial assistance are
required to provide meaningful access to LEP persons.[5]
Federal financial assistance
includes grants, cooperative agreements, training, use of equipment, donations
of surplus property, and other assistance.
Examples of recipients that receive DOI assistance include the
following:
·
State
fish and wildlife agencies;
·
State
and local park and recreation departments;
·
State and local
park police departments including fish and wildlife conservation law enforcement
agencies;
·
State
geological survey agencies;
·
State
and local historic preservation agencies including historical sites and places;
and
·
Irrigation districts and other public
entities providing water and power services.
Sub-recipients are covered when Federal
funds are passed through from one recipient to a Sub-recipient. Sub-recipients of DOI assistance
include, for example:
·
County and city park and recreation
agencies;
·
State
and local government agencies; and
·
Public and/or private
organizations.
Coverage extends to a recipient's entire program or activity, i.e., to all parts of a recipient's
operations. This is true even if only one of the recipient’s programs or
activities receives the Federal assistance.[6]
Example: DOI provides assistance to a city parks
and recreation department to develop or improve one particular park. All aspects of the city parks and
recreation department’s operations--not just the particular park slated for
development or improvement--are covered.
Finally, some recipients operate in jurisdictions in which English has
been declared the official language.
Nonetheless, these recipients continue to be subject to Federal
non-discrimination requirements, including those applicable to the provision of
federally assisted programs and activities to persons with limited English
proficiency.
IV. Who Is a Limited English Proficient
Individual?
Individuals who do not speak English as their primary language and who
have a limited ability to read, write, speak, or understand English can be
limited English proficient (LEP) and therefore entitled to language assistance
with respect to a particular type of service, benefit, or encounter. Examples of populations likely to
include LEP persons that DOI recipients serve or encounter and accordingly,
should consider when planning language services include, but are not limited
to:
·
Persons who are
actual or potential program beneficiaries of recreation or education programs
including those applying for fishing and hunting licenses, or desiring information regarding program
availability;
·
Persons visiting historical sites and
places;
·
Persons who
encounter natural resources conservation law enforcement officers or other law
enforcement recipients of DOI assistance;
·
Persons needing information on health,
environmental impact, safety, or other warnings or information from recipients
of DOI assistance; and
·
Parents and family members of the
above.
V. How Does a Recipient Determine the
Extent of Its Obligation to Provide LEP Services?
Recipients are required to take reasonable steps to ensure that LEP
persons have meaningful access to their programs and activities. While designed
to be a flexible and fact-dependent standard, 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; (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. As indicated above, DOI’s guidance
is intended to strike a balance between ensuring LEP persons have meaningful
access to critical services, benefits, and information while not imposing an
undue burden on small business, small local governments, or small
nonprofits.
After applying the above four-factor analysis, a recipient may conclude
that different language assistance measures are sufficient for the different
types of programs or activities in which it engages. For instance, some of a
recipient's activities will be more important than others and/or have greater
impact on or contact with LEP persons, and thus may require more in the way of
language assistance. The flexibility that recipients have in addressing the
needs of the LEP populations they serve does not diminish, and should not be
used to minimize, the obligation that those needs be addressed. DOI recipients
should apply the following four factors to the various kinds of contacts they
have with the public to assess language needs and decide what reasonable steps
they should take to ensure meaningful access for LEP
persons.
(1) The Number or Proportion of LEP
Persons Served or Encountered in the Eligible Service
Population
One factor in determining what language services recipients should
provide is the number or proportion of LEP persons from a particular language
group served or encountered in the eligible service population. The greater the
number or proportion of these LEP persons, the more likely language services are
needed. Ordinarily, persons eligible to be served or likely to be directly
affected by a recipient's program or activity are those who are served or
encountered in the eligible service population. This population will be
program-specific, and includes persons who are in the geographic area that has
been approved by a Federal grant Agency as the recipient's service area. However, where, for instance, a precinct
serves a large LEP population, the appropriate service area is most likely the
precinct, and not the entire population served by the department. Where no
service area previously has been approved, the relevant service area may be that
which is approved by state or local authorities or designated by the recipient
itself, provided that these designations do not themselves discriminatorily
exclude certain populations.
Recipients should first examine their prior experiences with LEP
encounters and determine the breadth and scope of language services that are
needed. In conducting this analysis, it is important to include language
minority populations that are eligible for their programs or activities but may
be underserved because of existing language barriers. Other data should be
consulted to refine or validate a recipient's prior experience, including the
latest census data for the area served, data from school systems and from
community organizations, and data from state and local governments.[7] Community agencies, school
systems, religious organizations, legal aid entities, and others can often
assist in identifying populations for whom outreach is needed and who would
benefit from the recipients’ programs and activities were language services
provided.
(2) The Frequency with Which LEP
Individuals Come in Contact with the Program
Recipients should assess, as accurately as possible, the frequency with
which they have or should have contact with a LEP individual from different
language groups seeking assistance. The more frequent the contact with a
particular language group, the more likely that enhanced language services in
that language are needed. The steps that are reasonable for a recipient that
serves a LEP person on a one-time basis will be very different than those
expected from a recipient that serves LEP persons daily. It is also advisable to
consider the frequency of different types of language contacts. For example, frequent contacts with
Spanish-speaking people who are LEP may require certain assistance in Spanish.
Less frequent contact with different language groups may suggest a different and
less intense solution. If a LEP
individual accesses a program or service on a daily basis, a recipient has
greater duties than if the same individual's program or activity contact is
unpredictable or infrequent. But
even recipients that serve LEP persons on an unpredictable or infrequent basis
should use this balancing analysis to determine what to do if a LEP individual
seeks services, benefits, or information under the program in question. This
plan need not be intricate. It may
be as simple as being prepared to use one of the commercially available
telephonic interpretation services to obtain immediate interpreter services.
In applying this standard,
recipients should take care to consider whether appropriate outreach to LEP
persons could increase the frequency of contact with LEP language
groups.
(3)
The Nature and Importance of the Program, Activity, or Service Provided
by the Program
The more important the activity, information, service, or program or the
greater the possible consequences of the contact to the LEP individuals, the
more likely language services are needed. The obligations to provide language
assistance services to residents of a community near a raging wildfire or other
environmental emergency, to a person who is suspected of a crime committed in a
park, or to an ill or injured park visitor, differ from obligations to
individuals seeking to enroll in a voluntary conservation class. A recipient needs to determine whether
denial or delay of access to benefits, services, warnings, or information could
have serious or even life-threatening implications for the LEP individual. Decisions by a Federal, State, or local
entity to make an activity compulsory, such as particular educational programs,
essential licenses, or the communication of Miranda rights, can serve as strong
evidence of the program’s importance.
(4)
The Resources Available to the Recipient and Costs
A recipient's level of resources and the costs that would be imposed on
it may have an impact on the nature of the steps it should take. Smaller
recipients with more limited budgets are not expected to provide the same level
of language services as larger recipients with larger budgets. In addition,
“reasonable steps” may cease to be reasonable where the costs imposed
substantially exceed the benefits.
Resource and cost issues, however, can often be reduced by technological
advances; the sharing of language assistance materials and services among and
between recipients, advocacy groups, and Federal assistance agencies; and
reasonable business practices. Where appropriate, training bilingual staff to
act as interpreters and translators, information sharing through industry
groups, telephonic and video conferencing interpretation services, pooling
resources and standardizing documents to reduce translation needs, using
qualified translators and interpreters to ensure that documents need not be
“fixed” later and that inaccurate interpretations do not cause delay or other
costs, centralizing interpreter and translator services to achieve economies of
scale, using universally understood pectoral signs, or the formalized use of
qualified community volunteers, for example, may help reduce costs.[8]
Recipients should carefully explore
the most cost-effective means of delivering competent and accurate language
services before limiting services due to resource concerns. Large entities and
those entities serving a significant number or proportion of LEP persons should
ensure that their resource limitations are well-substantiated before using this
factor as a reason to limit language assistance. Such recipients may find it
useful to be able to articulate, through documentation or in some other
reasonable manner, their process for determining that language services would be
limited based on resources or costs.
VI. How
Language Assistance Services Should Be Provided
This four-factor analysis necessarily implicates the “mix” of LEP
services required. Recipients have two main ways to provide language services:
Oral interpretation either in person or via telephone interpretation service
(hereinafter “interpretation”) and written translation (hereinafter
“translation”). Oral interpretation can range from on-site interpreters for
critical services provided to a high volume of LEP persons to access through
commercially available telephonic interpretation services. Written translation,
likewise, can range from translation of an entire document to translation of a
short description of the document. In some cases, language services should be
made available on an expedited basis while in other cases, the LEP individual
may be referred to another office of the recipient for language
assistance.
The correct mix should be based on what is both necessary and reasonable
in light of the four-factor analysis. For instance, fire departments or other
emergency services located near an Indian reservation may need immediate oral
interpreters available and should give serious consideration to hiring some
bilingual staff. (Of course, many fire departments may have already made such
arrangements.)
In contrast, there may be circumstances
where the importance and nature of the activity and number or proportion and
frequency of contact with LEP persons may be low and the costs and resources
needed to provide language services may be high--such as in the case of a
voluntary general public tour of a park--in which pre-arranged language services
for the particular service may not be necessary. Regardless of the type of
language service provided, quality and accuracy of those services can be
critical in order to avoid serious consequences to the LEP person and to the
recipient. Recipients have
substantial flexibility in determining the appropriate
mix.
VII.
Selecting Language Assistance Services
When selecting a language service, it is important to consider the
quality and accuracy of such service in order to avoid serious consequences to
the LEP person and the recipient.
A. Oral Language Services
(Interpretation).
Interpretation is
the act of listening to something in one language (source language) and orally
translating it into another language (target language). Where interpretation is needed and is
reasonable, recipients should consider some or all of the following options for
providing competent interpreters in a timely manner:
Competence of Interpreters.
When providing oral assistance,
recipients should ensure competency of the language service provider, no matter
which of the strategies outlined below are used. Competency requires more than
identifying oneself as bilingual.
Some bilingual staff and community volunteers, for
instance, may be able to communicate
effectively in a different language when communicating information directly in
that language, but not be competent to interpret into and out of English. Likewise, they may not be able to do
written translations.
Competency to interpret, however, does not necessarily mean formal
certification as an interpreter, although certification is helpful. When using
interpreters, recipients should ensure that they:
Demonstrate proficiency and the ability to
communicate information accurately in both English and the other language and
identify and employ the appropriate mode of interpreting;
·
Have
knowledge in both languages of any specialized terms or concepts peculiar to the
entity's program or activity and of any particularized vocabulary and
phraseology that the LEP person uses;[9]
·
Understand and follow confidentiality and
impartiality rules to the same extent the recipient employee for whom they are
interpreting and/or to the extent their position requires;
and
·
Understand and adhere to their role as
interpreters without deviating into a role as counselor, legal advisor, or other
roles (particularly in administrative hearings or law enforcement
activities).
Some recipients, such as those offering educational or instructional
programs, or public utility services, may have additional self-imposed
requirements for interpreters. Where individual rights depend on precise,
complete, and accurate interpretation or translations, particularly in the
context of public safety and law enforcement activities, the use of certified
interpreters is strongly encouraged.[10] Where proceedings are lengthy, the
interpreter will likely need breaks and team interpreting may be appropriate to
ensure accuracy and to prevent errors caused by mental
fatigue.
While quality and accuracy of language services is critical, the
standards for such services vary depending on the service, program or benefit
the recipient provides. For
example, the quality and accuracy of language services in a hunter education and
safety class, an interrogation of a suspect by park police, or environmental
hazard warnings must be extraordinarily high, while the quality and accuracy of
language services in a lighthouse tour need not meet the same exacting
standards.
Finally, when interpretation is needed and is reasonable, it should be
provided in a timely manner. The language assistance should be provided at a
time and place that avoids the effective denial of the service, benefit, or
right at issue or the imposition of an undue burden on or delay in important
rights, benefits, or services to the LEP person. For example, when the timeliness of
services is important, such as certain activities in law enforcement, health,
environmental, and safety services, or when important legal rights are at issue,
a recipient probably would not be providing meaningful access if it only had one
bilingual staffer available one day a week to provide the service. Such conduct would likely result in
delays for LEP persons that would be significantly greater than those for
English proficient persons. Conversely, where access to or exercise of a
service, benefit, or right is not effectively precluded by a reasonable delay,
language assistance can be delayed for a reasonable
period.
Hiring Bilingual Staff. When particular languages are
encountered often, hiring bilingual staff offers one of the best, and often most
economical, options. For
example, recipients can fill public contact positions such as lifeguards, park
rangers, conservation law enforcement officers, or recreation program directors,
with staff that are bilingual and competent to communicate directly with LEP
persons in their language. If
bilingual staff is also used to interpret between English speakers and LEP
persons, or to orally interpret written documents from English into another
language, they should be competent in the skill of interpreting. Being bilingual
does not necessarily mean that a person has the ability to interpret. In
addition, there may be times when the role of the bilingual employee may
conflict with the role of an interpreter.
Effective management strategies, including any appropriate adjustments in
assignments and protocols for using bilingual staff, can ensure that bilingual
staff is fully and appropriately utilized. When bilingual staff cannot meet all
of the language service obligations of the recipient, the recipient should turn
to other options.
Hiring Staff Interpreters. Hiring interpreters may be most
helpful where there is a frequent need for interpreting services in one or more
languages. Depending on the facts, sometimes it may be necessary and reasonable
to provide on-site interpreters to provide accurate and meaningful communication
with a LEP person.
Contracting for Interpreters. Contract interpreters may be a
cost-effective option when there is no regular need for a particular language
skill. In addition to commercial and other private providers, many
community-based organizations and mutual assistance associations provide
interpretation services for particular languages. Contracting with and providing
training regarding the recipient's programs and processes to these organizations
can be a cost-effective option for providing language services to LEP persons
from those language groups.
Using Telephone Interpreter Lines.
Telephone interpreter service lines often offer speedy interpreting
assistance in many different languages. They may be particularly appropriate
where the mode of communicating with an English proficient person would also be
over the phone. Although telephonic interpretation services are useful in many
situations, it is important to ensure that the interpreters used are competent
to interpret any technical or legal terms specific to a particular program. Often an interpreter relies on
non-verbal communication and nuances in language to accurately translate the
source language into the target language. Video teleconferencing may sometimes
help to resolve this issue where necessary. In addition, where documents are
being discussed, it is important to give telephonic interpreters an opportunity
to review the document prior to the discussion and address any logistical
problems.
Using Community Volunteers.
In addition to considering bilingual staff, staff interpreters, or
contract interpreters (either in-person or by telephone) as options to ensure
that LEP persons have meaningful access, recipient-coordinated community
volunteers working with community-based organizations also may provide a
cost-effective supplemental language assistance strategy under appropriate
circumstances. They may be
particularly useful in providing language access for a recipient's less critical
programs and activities. To the
extent the recipient relies on community volunteers, it is often best to use
volunteers who are trained in the information or services of the program and can
communicate directly with LEP persons in their language. Just as with all
interpreters, community volunteers used to interpret between English speakers
and LEP persons, or to orally translate documents, should be competent in the
skill of interpreting and knowledgeable about applicable confidentiality and
impartiality rules. Recipients should consider formal arrangements with
community-based organizations that provide volunteers to address these concerns
and to help ensure that services are regularly available.
Use of Family Members, Friends, Other Program Participants, or
Acquaintances as Interpreters. Although recipients should not plan to
rely on a LEP person's family members, friends, or other informal interpreters
to provide meaningful access to important programs and activities, where LEP
persons so desire, they should be permitted to use, at their own expense, an
interpreter of their own choosing (whether a professional interpreter, family
member, friend, or other informal interpreter) in lieu of or to supplement the
free language services the recipient offers. LEP persons may feel more
comfortable when a trusted family member, friend, or other informal interpreter
of their choice acts as an interpreter.
In addition, in exigent circumstances that are not reasonably
foreseeable, temporary use of interpreters not provided by the recipient may be
necessary. However, with proper planning and implementation, recipients should
be able to avoid such situations.
Recipients, however, should take special care to ensure that family,
legal guardians, caretakers, and other informal interpreters are appropriate in
light of the circumstances and subject matter of the program, service or
activity, including protection of the recipient's own administrative or
enforcement interest in accurate interpretation. In many circumstances, family members
(especially children), friends, or other informal interpreters are not competent
to provide quality and accurate interpretations. Issues of confidentiality,
privacy, or conflict of interest may also arise. LEP individuals may feel
uncomfortable revealing or describing sensitive, confidential, or potentially
embarrassing medical, law enforcement, family, or financial information to a
family member, friend, or member of the local community. In addition, such informal interpreters
may have a personal connection to the LEP person or an undisclosed conflict of
interest, such as the desire to protect themselves or another individual in a
criminal matter. For these reasons, when oral language services are necessary,
recipients should generally offer competent interpreter services free of cost to
the LEP person. For DOI recipient programs and activities, this is particularly
true in law enforcement settings, administrative hearings, situations in which
health, safety, or access to important benefits, services, or information are at
stake, or when credibility and accuracy are important to protect an individual's
rights or access to important services or information.
An example of such a case is when conservation law enforcement officers
respond to a hunting or fishing infraction. In such a case, use of family members or
friends to interpret for the alleged person cited for the hunting or fishing
violation may raise serious issues of competency, confidentiality, and conflict
of interest and is thus inappropriate.
While issues of competency, confidentiality, and conflict of interest in
the use of family members (especially children), friends, or other program
participants often make their use inappropriate, the use of these individuals as
interpreters may be an appropriate option where proper application of the four
factors indicates that recipient-provided services are not necessary. An example of this is a voluntary
educational tour of a park offered to the public. There, the importance and nature of the
activity may be relatively low and unlikely to implicate issues of
confidentiality, conflict of interest, or the need for accuracy. In addition, the resources needed and
costs of providing language services may be high. In such a setting, a LEP person's use of
family, friends, or others may be appropriate.
If the LEP person voluntarily chooses to provide his or her own
interpreter, a recipient should consider whether to document the recipient’s
offer to provide language assistance services and the LEP person’s response.
Where precise, complete and accurate interpretations or translations of
information and/or testimony are critical for law enforcement, adjudicatory,
health, safety, or legal reasons, or where the competency of the LEP person's
interpreter is not established, a recipient might decide to provide its own,
independent interpreter, even if a LEP person wants to use his or her own
interpreter as well. Extra caution
should be exercised when the LEP person chooses to use a minor as the
interpreter. While the LEP person's
decision should be respected, there may be additional issues of competency,
confidentiality, or conflict of interest when the choice involves using children
as interpreters. The recipient
should take care to ensure that the LEP person's choice is voluntary, that the
LEP person is aware of the possible problems if the preferred interpreter is a
minor child, and that the LEP person knows that a competent interpreter could be
provided by the recipient at no cost.
B.
Written Language Services (Translation)
Translation is the replacement of a written text from one language
(source language) into an equivalent written text in another language (target
language).
What Documents Should be
Translated? After applying the four-factor analysis, a recipient may
determine that an effective LEP plan for its particular program or activity
includes the translation of vital written materials into the language of each
frequently-encountered LEP group eligible to be served or likely to be affected
by the recipient’s program.
Such written materials could include, for example:
·
Consent and complaint
forms;
·
Program materials describing program
availability;
·
Geological maps and informational
publications, under certain circumstances;
·
Written notices of rights, denial, loss,
or decreases in benefits or services, or of public hearings that impact the
community;
·
Hunter and aquatics safety education
materials;
·
Vital
portions of websites describing an Agency’s mission, organization, programs,
activities and services;
·
Notices advising LEP persons of free
language assistance;
·
Prohibit and warning signs, brochures, or
other informational material, including information on dangerous wildlife,
natural hazards, environmental hazards, and other health and safety-related
information;
·
Written tests that
do not assess English language competency, but test competency for a particular
license, job, or skill for which knowing English is not required; and
·
Applications to
participate in a recipient’s program or activity or to receive recipient
benefits, services, licenses, permits, etc.
Whether or not a document (or the information it solicits) is “vital” may
depend upon the importance of the program, information, encounter, or service
involved, and the consequence to the LEP person if the information in question
is not provided accurately or in a timely manner. For instance, applications for bicycle
safety courses generally should not be considered vital, whereas applications
for drug and alcohol counseling in prison should be considered vital. Where appropriate, recipients are
encouraged to create a plan for consistently determining, over time and across
various activities, what documents are “vital” to the meaningful access of the
LEP populations they serve.
Classifying a document as vital or non-vital is sometimes difficult,
especially in the case of outreach materials like brochures or other general
information on rights and services.
Awareness of rights or services is an important part of “meaningful
access.” Lack of awareness that a
particular program, right, or service exists may effectively deny LEP
individuals meaningful access. Thus, where a recipient is engaged in
community outreach activities in furtherance of its activities, it should
regularly assess the needs of the populations frequently encountered or affected
by the program or activity to determine whether certain critical outreach
materials should be translated. Community organizations may be helpful in
determining what outreach materials may be most helpful to translate. In
addition, the recipient should consider whether translations of outreach
materials may be made more effective when done in tandem with other outreach
methods, including utilizing the appropriate non-English language speaking
media, schools, religious and community organizations to spread a
message.
Sometimes a document includes both
vital and non-vital information. This may be the case when the document is
very large. It may also be the case
when the title and a phone number for obtaining more information concerning the
contents of the document in frequently-encountered languages other than English
is critical, but the document is sent out to the general public and reasonably
cannot be translated into many languages. Thus, vital information may include,
for instance, the provision of information in appropriate languages other than
English regarding where a LEP person might obtain language assistance services
to interpret or translate a document.
Into What Languages Should
Documents be Translated?
The languages spoken by the LEP individuals with whom the recipient has
contact determine the languages into which vital documents should be translated.
A distinction should be made,
however, between languages that are frequently encountered by a recipient and
less commonly encountered languages.
Many recipients serve communities in large cities or across the country.
They regularly serve LEP persons
who speak numerous different languages. To translate all written materials into
all of those languages is unrealistic. Although recent technological advances
have made it easier for recipients to store and share translated documents, such
an undertaking would incur substantial costs and require substantial
resources. Nevertheless,
well-substantiated claims of lack of resources to translate all vital documents
into dozens of languages do not necessarily relieve the recipient of the
obligation to translate those documents into at least several of the more
frequently-encountered languages and to set benchmarks for continued
translations into the remaining languages over time. As a result, the recipient should
determine its obligation to provide written translations of documents on a
case-by-case basis, looking at the totality of the circumstances in light of the
four-factor analysis. Because
translation is a one-time expense, consideration should be given to whether the
upfront cost of translating a document (as opposed to oral interpretation)
should be amortized over the likely lifespan of the document when applying this
four-factor analysis.
The failure to provide written translations under the circumstances
outlined in the Department’s Safe Harbor
Guidelines at paragraphs (a) and (b) does not mean there is non-compliance.
Rather, they provide a common
starting point for recipients to consider whether and at what point the
importance of the service, benefit, or activity involved; the nature of the
information sought; and the number or proportion of LEP persons served call for
written translations of commonly-used forms into frequently-encountered
languages other than English. Thus,
these paragraphs merely provide a guide for recipients that are interested in
specific examples of safe harbor guidelines. However, even if the safe harbors are
not used, if written translation of a certain document(s) would be so burdensome
as to defeat the legitimate objectives of its program, the translation of the
written materials is not necessary. Other ways of providing meaningful
access, such as effective oral interpretation of certain vital documents, might
be acceptable under such circumstances.
(a) The DOI recipient provides written
translations of vital documents for each eligible LEP language group that
constitutes five percent or 1,000, whichever is less, of the population of
persons eligible to be served or likely to be affected or encountered.
Translation of other documents, if needed, can be provided orally;
or
(b) If there are fewer than 50 persons in
a language group that reaches the five-percent trigger in (a), the recipient
does not translate vital written materials but provides written notice in the
primary language of the LEP language group of the right to receive competent
oral interpretation of those written materials, free of
cost.
These safe harbor provisions apply to the translation of written
documents only. They do not affect the requirement to provide meaningful access
to LEP individuals through competent oral interpreters where oral language
services are needed and are reasonable. For example, even where the safe harbor
numbers are not met for a particular language, a LEP person speaking that
language should be given appropriate oral interpretation of important
information.
Competence of Translators. As with oral interpreters,
translators of written documents should be competent. Many of the same
considerations apply. However, the skill of translating is very different from
the skill of interpreting, and a person who is a competent interpreter may or
may not be competent to translate.
Particularly where legal or other vital documents are being translated,
competence can often be achieved by use of certified translators. Certification
or accreditation may not always be possible or necessary.[11] Having a second, independent translator
check the work of the primary translator can often ensure competence. Alternatively, one translator can
translate the document, and a second, independent translator could translate it
back into English to check that the appropriate meaning has been conveyed. This
is called “back translation.”
Translators should understand the expected reading level of the audience
and, where appropriate, have fundamental knowledge about the target language
group’s vocabulary and phraseology. Sometimes direct translation of materials
results in a translation that is written at a much more difficult level than the
English language version or has no relevant equivalent meaning.[12]
While quality and accuracy of translation services is critical, the
quality and accuracy of translation services is nonetheless part of the
appropriate mix of LEP services required.
For instance, a recipient may use less-skilled translators to translate
simple documents that have no legal, health, access to benefits and services, or
safety consequences. However, to
the extent documents contain this type of critical information, recipients
should consider using highly skilled translators to translate their contents
(including, e.g., information or
documents regarding certain law enforcement, health and safety services and
certain legal rights, applications, warnings, or prohibitions). The permanent nature of written
translations, however, imposes additional responsibility on the recipient to
ensure that LEP persons have meaningful access.
VIII. Elements of an Effective Plan on Language
Assistance for LEP Persons
After completing the four-factor analysis and deciding what language
assistance services are appropriate, a recipient should develop an
implementation plan to address the identified needs of the LEP populations they
serve. Recipients have considerable flexibility in developing this plan. The development and maintenance of a
periodically-updated written plan on language assistance for LEP persons (“LEP
plan”) for use by recipient employees serving the public will likely be the most
appropriate and cost-effective means of documenting compliance and providing a
framework for the provision of timely and reasonable language assistance. Moreover, such written plans would likely
provide additional benefits to a recipient's managers in the areas of training,
administration, planning, and budgeting.
The LEP Plan should lead most recipients to document their language
assistance services, and how staff and LEP persons can access those services.
Despite the benefits associated with a written plan, certain DOI
recipients, such as recipients serving very few LEP persons or recipients with
very limited resources, may choose not to develop a written LEP plan. However, the absence of a written LEP
plan does not obviate the recipient’s obligation to ensure that LEP persons have
meaningful access to its program or activities. Accordingly, in the event that a
recipient elects not to develop a written plan, it should consider alternative
ways to articulate its plan for providing meaningful access. Entities having significant contact with
LEP persons, such as schools, religious organizations, community groups, and
groups working with new immigrants can be very helpful in providing important
input into this planning process.
The following five steps may be helpful in designing a LEP plan and are
typically part of effective implementation plans.
(1)
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 a recipient 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. Such cards,
for instance, might say, “I speak Spanish” in both Spanish and English, “I speak
Vietnamese” in both English and Vietnamese, etc. To reduce costs of compliance, the
Federal government has made a set of these cards available on the Internet. At http://www.usdoj.gov/crt/cor/13166.htm
or http://www.lep.gov the Census Bureau “I speak card” can be
found and downloaded. 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. In addition to helping employees identify the
language of LEP persons they encounter, this process will help in future
applications of the first two factors of the four-factor analysis. In addition,
posting notices in commonly encountered languages notifying LEP persons of
language assistance will encourage them to identify themselves as requiring
language assistance services.
(2) Identifying 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; and
·
How
to ensure competency of interpreters and translation
services.
(3) Training Staff
Staff should know their obligation to provide meaningful access to
information and services for LEP persons. An effective LEP plan would likely
include training to ensure that:
·
Staff
knows about LEP policies and procedures; and,
·
Staff that have
contact with the public are trained to work effectively with in-person and
telephone interpreters and make materials that have been translated readily
available.
Recipients may want to include this training as part of its orientation
for new employees. It is important to ensure that all employees in public
contact positions (or having contact with those in a recipient's custody) are
properly trained. Recipients have flexibility in deciding the manner in which
the training is provided. 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 a LEP plan. However, management staff, even
if they do not interact regularly with LEP persons, should be fully aware of and
understand the plan so they can implement and reinforce its
terms.
(4) Providing Notice to LEP
Persons
Once an Agency has decided that it will provide language services based
on the four factors, 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 such notice include:
·
Posting
signs in intake areas and other entry points. When language assistance is needed to ensure meaningful
access to information, benefits, 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.[13]
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.[14] This is particularly true in
areas with high volumes of LEP persons seeking access to the DOI recipient’s
recreational areas, historical sites, and fishing or hunting activities. Appropriate notice to LEP persons
also is important to ensure their access to information about environmental
concerns.
·
Stating in outreach documents that
language services are available from the
Agency. Announcements could be published in
brochures, booklets, and in outreach and recruitment information. These statements should be translated
into the most common languages and could be put on the front of common
documents.
·
Community
organizations. The recipient could work with
community-based organizations and other stakeholders to inform LEP individuals
of the recipient’s services, including the availability of language assistance
services.
·
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.
·
Printed media.
The recipient could publish notices in local newspapers in languages
other than English.
·
Broadcasts. The
recipient could provide notices on non-English-language radio and television
stations about the available language assistance services and how to get
them.
·
Schools. The recipient could inform LEP persons of
the availability of language services through presentations and/or by providing notices at
schools and religious organizations.
(5)
Monitoring and Updating the LEP Plan
Recipients should, where appropriate, have a process for determining
whether new documents, programs, services, and activities need to be made
accessible for LEP individuals, and informing employees and LEP persons of any
changes in services. 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 certain service
areas or populations affected or encountered;
·
Frequency of encounters with LEP language
groups;
·
Nature and importance of activities to LEP
persons;
·
Availability of
resources, including technological advances, additional resources and the costs
imposed;
·
Whether existing assistance is meeting the
needs of LEP persons;
·
Whether staff knows
about and understands the LEP plan and how to implement it; and
·
Whether identified
sources for assistance are still available and viable.
In addition to the five elements typically found in effective
implementation plans, such plans set clear goals, management accountability, and
opportunities for community input and planning throughout the
process.
IX.
Voluntary Compliance Effort
The goal for Title VI and Title VI regulatory enforcement is to achieve
voluntary compliance. The
requirement to provide meaningful access to LEP persons is enforced and
implemented by DOI through the procedures identified in the Title VI
regulations. These procedures
include complaint investigations, compliance reviews, efforts to secure
voluntary compliance, and technical assistance.
The Title VI regulations provide that DOI will investigate whenever it
receives a complaint, report, or other information that alleges or indicates
possible noncompliance with Title VI or its regulations. If the investigation results in a finding
of compliance, DOI will inform the recipient in writing of this determination,
including the basis for the determination.
DOI uses voluntary mediation to resolve most complaints. However, if a case is fully investigated
and results in a finding of noncompliance, DOI must inform the recipient of the
noncompliance through a Letter of Findings that sets out the areas of
noncompliance and the steps that must be taken to correct the noncompliance.
DOI will attempt to secure
voluntary compliance through informal means. If the matter cannot be resolved
informally, DOI must secure compliance through the termination of Federal
assistance after the DOI recipient has been given an opportunity for an
administrative hearing, by referring the matter to a Department of Justice
litigation section to seek injunctive relief or by pursuing other enforcement
proceedings. DOI engages in
voluntary compliance efforts and provides technical assistance to recipients at
all stages of an investigation. During these efforts, DOI proposes
reasonable timetables for achieving compliance and consults with and assists
recipients in exploring cost-effective ways of coming into compliance. In determining a recipient's compliance
with the Title VI regulations, DOI’s primary concern is to ensure that the
recipient's policies and procedures provide meaningful access for LEP persons to
the recipient's programs and activities.
While all recipients must work toward building systems that will ensure
access for LEP individuals, DOI acknowledges that the implementation of a
comprehensive system to serve LEP individuals is a process and that a system
will evolve over time as it is implemented and periodically reevaluated. As recipients take reasonable steps to
provide meaningful access to federally assisted programs and activities for LEP
persons, DOI will look favorably on any intermediate steps the recipients take
that are consistent with this Guidance, and that, as part of a broader
implementation plan or schedule, move their service delivery system toward
providing full access to LEP persons. This does not excuse noncompliance but
instead recognizes that full compliance in all activities of recipients and for
all potential language minority groups reasonably may require a series of
implementing actions over a period of time. However, in developing any phased
implementation schedule, DOI recipients should ensure that they first provide
appropriate assistance for significant LEP populations and activities having a
significant impact on the health, safety, legal rights, or livelihood of
beneficiaries. Recipients are
encouraged to document their efforts to provide LEP persons with meaningful
access to federally assisted programs and activities.
FOR FURTHER
INFORMATION CONTACT: Melvin C. Fowler, Civil Rights Staff
Assistant, Office for Equal Opportunity,
U. S. Department of the Interior, 1849 C Street N. W., Mail Stop 5221,
Washington, D. C. 20240,
Email: Melvin_C_Fowler@ios.doi.gov,
Phone: (202) 208-3455, FAX: (202) 208-6112.
SUPPLEMENTARY
INFORMATION: Under Title VI of the Civil Rights Act
of 1964, 42 U.S.C. 2000d, et seq.
(Title VI), and Title VI regulations, recipients of Federal financial assistance
have a responsibility to ensure meaningful access to their programs and
activities by persons with limited English proficiency (LEP). Executive Order
13166, reprinted at 65 FR 50121 (August 16, 2000), directs each Federal Agency
that extends assistance subject to the requirements of Title VI to publish
guidance for its respective recipients clarifying that obligation. Executive Order 13166 further directs
that all such guidance documents be consistent with the compliance standards and
framework detailed in Department of Justice Policy Guidance entitled
“Enforcement of Title VI of the Civil Rights Act of 1964 – National Origin
Discrimination Against Persons with Limited English Proficiency.” See 65 FR 50123 (
[1] The Department of the Interior recognizes that many
recipients had language assistance programs in place prior to the issuance of
Executive Order 13166. This policy
guidance provides a uniform framework for a recipient to integrate, formalize
and assess the continued vitality of these existing programs and identify
additional reasonable efforts based on the nature of its program or activity,
the current needs of the LEP populations it encounters, and its prior experience
in providing language services in the community it serves.
[2] The policy guidance is not a regulation but rather a
guide. Title VI and its
implementing regulations require that recipients take reasonable steps to ensure
meaningful access by LEP persons.
This guidance provides an analytical framework that recipients may use to
determine how best to comply with statutory and regulatory obligations to
provide meaningful access to the benefits, services, information, and other
important portions of their programs and activities for individuals who are
limited English proficient.
[3]Improving Access to Services for Persons
with Limited English Proficiency, 65 FR 50121 (
[4] The memorandum noted that some commentators have
interpreted Sandoval as impliedly
striking down the disparate-impact regulations promulgated under Title VI that
form the basis for the part of Executive Order 13166 that applies to federally
assisted programs and activities.
See, e.g., Sandoval, 532 U.S. at 286, 286 n.6
(“[DOJ] assumes for purposes of this decision that section 602 confers the
authority to promulgate disparate-impact regulations; * * * We cannot help
observing, however, how strange it is to say that disparate-impact regulations
are ‘inspired by, at the service of, and inseparably intertwined with’ Sec. 601
* * * when Sec. 601 permits the very behavior that the regulations forbid.”)
According to DOJ, “the memorandum, however, made clear that DOJ disagreed with
the commentators’ interpretation.
Sandoval holds principally that there is no private right of action to
enforce Title VI disparate-impact regulations. It did not address the validity of those
regulations or Executive Order 13166 or otherwise limit the authority and
responsibility of Federal assistance agencies to enforce their own implementing
regulations.”
[5]Pursuant to Executive Order 13166, the meaningful access
requirement of the Title VI regulations and the four-factor analysis set forth
in this guidance also apply to the programs and activities of Federal agencies,
including DOI’s programs and activities.
Examples include, but are not limited to, schools and other programs
operated by the Bureau of Indian Affairs, environmental impact research and
surveys, land management, national parks, fish and wildlife programs and
activities, power plants run by DOI, and others.
[6]
If DOI decided, however, to terminate Federal assistance to a recipient based
upon noncompliance with its Title VI regulations, only funds directed to the
particular program or activity that is out of compliance would be terminated. 42
U.S.C. 2000d-1.
[7] The focus of the analysis is on lack of English
proficiency, not the ability to speak more than one language. Note that demographic data may indicate
the most frequently spoken languages other than English and the percentage of
people who speak that language but are not proficient in English. Some of the most commonly spoken
languages other than English may be spoken by people who are also overwhelmingly
proficient in English. Thus, they
may not be the languages spoken most frequently by limited English proficient
individuals. When using demographic
data, it is important to focus upon the languages spoken by those who are not
proficient in English.
[8] Small recipients with limited resources may find that
entering into a bulk telephonic interpretation service contract will prove cost
effective.
[9] Many languages have “regionalisms,” or differences in
usage. For instance, a word that
may be understood to mean something in Spanish for someone from
[10]
For those languages in which no formal accreditation or certification currently
exists, recipients should consider a formal process for establishing the
credentials of the interpreter.
[11] For those languages in which no formal accreditation
currently exists, a particular level of membership in a professional translation
association can provide some indicator of
professionalism.
[12]
For instance, there may be languages which do not have an appropriate direct
translation of some natural resources terms or historic references. The translator should be able to provide
an appropriate translation and make the recipient aware that an appropriate
direct translation does not exist.
Recipients can then work with translators to develop a consistent and
appropriate set of descriptions of these terms in that language that can be used
again, when appropriate. Recipients
will find it more effective and less costly if they try to maintain consistency
in the words and phrases used to translate historic references, geological terms
or other technical concepts.
Creating or using already created glossaries of commonly used terms may
be useful for LEP persons and translators and cost effective for the
recipient. Providing translators
with examples of the recipient’s previous translations of similar material may
be helpful. In addition to the
translator’s assessment of the material, community organizations may be able to
help consider whether a document is written at a good level for the
audience.
[13] 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 and should explain how to get language assistance service.
[14] The Social Security Administration has made such signs
available at its website, (see http://www.ssa.gov/multilanguage/langlist1.htm.). The signs could be modified for
recipient use.