Limited English Proficiency

Civil Rights

Executive Order 13166 (EO 13166) challenges federal agencies to "implement a system by which [limited English-proficient or "LEP"] persons can meaningfully access… services consistent with, and without unduly burdening, the fundamental mission of the agency." When read in its entirety, and interpreted consistently with Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1972, the Executive Order applies to all programs and activities of a federal agency, which is, essentially, everything the agency does.

The Executive Order requires Federal agencies that provide Federal financial assistance to develop guidance to clarify those obligations for recipients of such assistance ("recipient guidance").

In addition, the Executive Order requires all Federal agencies to apply the four-factor analysis as Federal financial assistance recipients in providing meaningful access for LEP individuals to all of its federally conducted programs and activities. Each federal agency is required to develop a plan for taking reasonable steps to provide meaningful access for LEP persons, in light of the four-factor analysis.

KEY FHWA Stewardship/Oversight Responsibilities

Ensure that FHWA and all recipients/subrecipients have an LEP plan that is being implemented in accordance with regulations (including complaint procedures).
Ensure that FHWA and recipient's programs and activities provide for a fully coordinated process (i.e., implementation of an annual needs assessment [data collection and analysis of LEP community, needs, etc.], public involvement that includes a process for seeking out and considering the needs of the LEP population).
Use a multidisciplinary approach, monitor and evaluate FHWA staff and recipients'/subrecipients' efforts to prevent, resolve or mitigate issues/situations that could lead to LEP violations.

Contacts/phone numbers

Candace Groudine
Director, External Civil Rights Programs
Office of Civil Rights
(202) 366-9057

Janine Ashe
Civil Rights Policy and Regulations Specialist
(202) 355-9057

Authorities

LEP Executive Order 13166. Title VI of the Civil Rights Act prohibits discrimination on the basis of national origin, among other things. The LEP Executive Order (Executive Order 13166) ensures that, consistent with Title VI, persons with Limited English proficiency ("LEP") have meaningful access to federally conducted and federally funded programs and activities. The Order requires all agencies that provide Federal financial assistance to issue guidance on how Title VI applies to recipients of that assistance in their contact with persons who are LEP. The Order also requires that Federal agencies create plans for ensuring that their own activities also provide meaningful access for persons who are LEP.

Guidance

August 2000 DOJ Guidance. The Department of Justice, at the time the EO was published, also issued a guidance document for agencies to follow in designing their own LEP guidance for recipients, and in creating plans for making Federal activities and programs meaningfully accessible. The guidance clarified long-standing LEP responsibilities under Title VI and the Title VI regulations, including disparate impact regulations and a 1976 DOJ regulation requiring translation of documents in certain circumstances. The DOJ guidance document told agencies to consider four factors in developing LEP guidance for their recipients (the number of LEP persons in the eligible service population or likely to be encountered in recipient activities and programs; the frequency with which LEP individual come into contact with the program; the importance of the service or information provided by the program; and the resources available to the recipient of the Federal funds). Agencies have asked DOJ for additional guidance regarding how to balance these four factors.

DOJ Memorandum Clarifies August 2000. Guidance In response to requests for clarification (from recipients), on October 26^th, the Department of Justice issued a memorandum to agency heads. The memorandum reaffirms the Administration's commitment to ensuring that LEP individuals have meaningful access to federally funded and federally conducted programs and activities. The Administration likewise recognizes that LEP services must be delivered in a cost-effective manner. Thus, the memorandum is designed to ensure the delivery of LEP services to eliminate invidious discrimination prohibited by Title VI itself and unjustified disparate impact prohibited by the Title VI regulations consistent with the four "reasonableness" factors outlined in the DOJ LEP Guidance.

A factor in determining the reasonableness of a recipient's efforts is the number or proportion of people who will be excluded from the program or activity absent efforts to remove language barriers.
Frequency of contact must also be considered. Where the frequency and number of contacts with individuals who speak a particular language is very small, Title VI may impose fewer substantial LEP obligations on recipients. At the same time, when an agency serves a large LEP population, it will have to take more substantial steps to ensure that it meets its Title VI obligations.
The nature and importance of the program is a consideration. Where the denial or delay of access may have life or death or serious implications, the importance of the full and effective delivery of LEP services is at its zenith
Resources available are a consideration. A larger recipient with extensive resources may have to take greater steps than a smaller recipient with limited resources. Although on-the-premises translators may be needed in some circumstances, written translation, access to centralized interpreter language lines or other means, may be appropriate in others.
Costs must be factored into this balancing test as part of the consideration of "resources available." "Reasonable steps" may cease to be reasonable where the costs imposed substantially exceed the benefits in light of the factors outlined in the DOJ LEP Guidance.

DOJ Memorandum Clarifies Procedures for Recipient Guidance. In addition to clarifying its LEP guidance, the DOJ memorandum also assures that the public be given a full opportunity to comment on agencies' LEP guidance. Thus, it directs agencies to obtain public comment on their existing recipient guidance. Agencies must review their existing and proposed recipient guidance documents for (a) consistency with DOJ's clarifications; (b) compliance with the Administrative Procedure Act (notice and comment requirements); and (c) compliance with requirements for significant regulatory action (See Executive Order 12866 (setting forth OMB clearance requirements)). It is up to each agency to determine whether its recipient guidance document is a significant regulatory action and whether the Administrative Procedure Act's notice and comment requirements apply.

DOJ Memorandum Clarifies Procedures for Federally Conducted Plans. The memorandum clarifies the steps that agencies should take in ensuring that recipients of Federal funds comply with Title VI of the Civil Rights Act. Federal agencies likewise should review plans for federally conducted programs and activities in light of the memorandum's clarifications.