DOJ Issues Policy Guidance on Discrimination against Persons with Limited English Proficiency

IMMIGRANTS & PUBLIC BENEFITS

Language Access

DOJ ISSUES POLICY GUIDANCE ON DISCRIMINATION AGAINST PERSONS WITH LIMITED ENGLISH PROFICIENCY
Immigrants' Rights Update, Vol. 14, No. 5, August 31, 2000

The U.S. Dept. of Justice's (DOJ's) Civil Rights Division has issued a policy guidance intended to assist federal agencies comply with Title VI of the Civil Rights Act of 1964 in providing services to limited English-proficient (LEP) individuals. The guidance is also intended to serve as a basis on which agencies that administer federal funds can develop guidelines instructing funding recipients on providing services to LEP persons. According to the DOJ, the guidance does not create new obligations. Rather, it is intended to clarify existing federal agency responsibilities under Title VI. In a related development, on Aug. 11, 2000, President Clinton signed an executive order directing federal agencies to develop compliance plans within 120 days that accord with the DOJ's guidance. The executive order also directs agencies that administer federal funds to develop guidelines for their funding recipients.

Under Title VI, recipients of federal funds, including government agencies and nongovernmental entities, are prohibited from using race, color, or national origin as a basis for discriminating against or otherwise excluding individuals from programs or activities they conduct. As the guidance notes, and as recognized by the U.S. Supreme Court, the link between national origin and language has been well established since the passage of the Civil Rights Act.

At the heart of the DOJ's guidance is an explanation of Title VI's requirement that all recipients of federal funding take reasonable steps to ensure "meaningful" access to the information and services they provide. The guidance advises that assessing whether such measures can be construed as reasonable will be based on the following four factors:

Number or Proportion of LEP Individuals. One factor in determining reasonableness is the number or proportion of persons who would be excluded from the benefits or services because of language barriers. The steps that would be considered reasonable for programs that serve very few LEP persons may differ from those expected of programs that serve greater numbers of such persons. The guidance advises that "even those who serve very few LEP persons . . . should utilize this balancing analysis to determine whether reasonable steps are possible" and have in place a plan to serve such persons when the need arises.

Frequency of Contact with the Program. Another factor is the frequency with which LEP persons come into contact with the agency or federally funded program. For example, the guidance explains, the obligations falling on programs that frequently interact with LEP persons, such as schools or hospitals, are greater than those applying to programs whose contact with such persons is "unpredictable or infrequent."

Nature and Importance of the Program. The importance of the services or benefits provided by a program to beneficiaries also affects the determination of reasonableness. According to the guidance, "More affirmative steps must be taken in programs where the denial or delay of access may have life or death implications than in programs that are not as crucial to one's day-to-day existence." To assess the effect that failing to provide language services would have on LEP persons, programs must consider the importance of the benefit provided, in both the short and long terms. One strong indicator of a program's importance is a decision by a federal, state, or local governmental entity to make an activity compulsory, such as attending school or medical inoculations.

Resources Available. The resources that programs have available are also to be considered in determining reasonableness. The guidance notes that a small program with limited resources may not have the same obligations as those falling on larger programs, "where contact is infrequent, where the total cost of providing language services is relatively high, and/or where the program is not crucial to an individual's day-to-day existence."

The DOJ's guidance took effect on Aug. 11, 2000.

The U.S. Dept. of Health and Human Services (HHS) is expected to release guidelines consistent with the executive order providing more detail about how agencies receiving HHS-administered funds may comply with Title VI.

65 Fed. Reg. 50,123-25 (Aug. 16, 2000).