People whose primary language is not English and have a limited ability to understand, speak, read, and write English are at a disadvantage in the United States. If they want to take advantage of government programs, for example, they may not understand or exercise their rights in the programs and activities funded by the federal government, or be able to access important benefits or services of the programs or comply with applicable responsibilities. Such individuals are referred to as being "limited English proficient" or LEP.
It is the goal of the federal government to reduce the language barriers for LEP individuals seeking access to government services. Federal agencies are required to create plans to ensure that their activities are accessible to these people. At the same time, the government obligates organizations receiving federal assistance in the form of grants or training, for example, to take reasonable steps to ensure the same meaningful access to their programs.
Federal laws that, in particular, apply to language access are:
Section 601 of Title VI of the Civil Rights Act of 1964 states that no person can be denied benefits or be subjected to discrimination because of his or her race, color, or national origin under any program or activity receiving federal financial assistance. In some cases, the connection between national origin and a person's limited English proficiency might result in discrimination on the basis of the person's limited ability to speak and understand English. Furthermore, Section 602 of Title VI authorizes and directs federal agencies that provide financial assistance to programs or activities to issue rules and regulations that effectuate the provisions of Section 601. The Omnibus Crime Control and Safe Streets Act of 1968 provides the same prohibitions as Section 601.
Executive Order 13166 directs federal agencies to take reasonable steps to ensure that their programs are accessible to LEP individuals. The agencies are required to publish guidance to clarify that obligation. All such guidance documents must be consistent with the compliance standards and framework set forth in a DOJ Policy Guidance entitled "Enforcement of Title VI of the Civil Rights Act of 1964-National Origin Discrimination Against Persons with Limited English Proficiency." Finally, Executive Order 13166 requires that these agencies ensure that their recipients of federal financial assistance also take reasonable steps to ensure meaningful access for LEP individuals.
Federal financial assistance can include grants, awards, and training provided to state and local government entities, nonprofit and private organizations, and tribal governments, as well as to subrecipients (entities that receive federal funding from those recipients). Other organizations affected include state and local police, courts, prisons, juvenile justice agencies, other law enforcement programs, colleges and universities, and state and local planning agencies.
In June 2002, DOJ adopted its final "Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons" (LEP Guidance). In it, DOJ discusses four factors that agencies must use to assess the need for interpretation assistance for a particular language group or groups.
1. The number or proportion of LEP persons served or encountered by the program or grantee in the eligible service population.
The recipient should take into account the number of past LEP encounters and also look at statistical data, such as the census, school systems, and community groups to determine those encountered or eligible to be served. The greater the number or proportion, the more likely that pre-arranged language services are needed.
2. The frequency with which LEP individuals come in contact with a program.
The recipient should determine how often contact with particular language groups would occur and where, such as in schools or jails or community centers. More frequent contact means a greater need for enhanced language services.
3. The nature and importance of the program, service, or benefit to people's lives.
For the LEP person, the consequences of being unable to communicate effectively can mean not understanding that the government program may be compulsory, or that denial or delay of service may have serious or life-threatening consequences. The more important the program, the more likely that timely, highly qualified interpreters will be needed.
4. The resources available to the grantee/recipient or agency to implement LEP guidance, and the costs.
The grantee/recipient or agency has to analyze the costs of providing different types of language services and the impact of those costs on the steps it should take to provide such services. The recipient should explore all options for providing those services before limiting access because of cost.
The four-factor analysis also must consider the kinds of LEP services required (whether oral interpretation through various means or written translation), staff training, and an outreach program to notify LEP persons of the availability of language assistance. The key to LEP compliance is to ensure meaningful access to programs for LEP individuals by making certain that they receive accurate, timely, and effective information at no cost.
The LEP Guidance recommends, but does not require, that recipients develop and have in place an implementation plan for identifying and providing language services to LEP individuals. A plan periodically reviewed and updated by the recipients would be a cost-effective way to document compliance and provide a framework for providing language assistance. Organizations are not required to submit their plans to federal agencies, but in certain circumstances, such as complaint investigations or compliance reviews, recipients may be required to discuss their plans and practices for providing services to LEP individuals.
While LEP individuals are to receive language services at no cost to them, it is an expense that agencies and recipients of federal funds must factor into their budgets. The DOJ concedes that costs are a legitimate consideration in identifying the reasonableness of particular language assistance measures, and that providing such assistance could be costly for certain recipients. The goal of providing assistance to LEP individuals must be coupled with finding ways to reduce the costs of LEP requirements to small local governments, businesses, or nonproft organizations that receive federal financial assistance. The DOJ can provide guidance in this area.