DOT Guidance to Recipients on Special Language Services to Limited English Proficient (LEP) Beneficiaries

DOT Guidance to Recipients on Special Language Services to Limited English Proficient (LEP) Beneficiaries

I. Background:

On August 11, 2000, President Clinton signed Executive Order 13166, entitled AImproving Access to Services for Persons with Limited English Proficiency.@ 65 FR 50121 (September 16, 2000). On the same day, the Assistant Attorney General for Civil Rights issued a Policy Guidance Document titled AEnforcement of Title VI of the Civil Rights Act of 1964 B National Origin Discrimination Against Persons With Limited English Proficiency@ (hereinafter referred to as ADOJ LEP Guidance@), reprinted at 65 FR 50123 (September 16, 2000).

Executive Order 13166 requires Federal departments and agencies extending financial assistance to develop and make available guidance on how recipients should, consistent with the DOJ LEP Guidance and Title VI of the Civil Rights of 1964, as amended, assess and address the needs of otherwise eligible limited English proficient persons seeking access to the programs and activities of recipients of federal financial assistance. The DOJ LEP Guidance, in turn, provides general guidance on how recipients can ensure compliance with their Title VI obligation to Atake reasonable steps to ensure >meaningful= access to the information and services they provide.@ DOJ LEP Guidance, 65 FR at 50124. The DOJ LEP Guidance goes on to provide,

[w]hat constitutes reasonable steps to ensure meaningful access will be contingent on a number of factors. Among the factors to be considered are the number or proportion of LEP persons in the eligible service population, the frequency with which LEP individuals come in contact with the program, the importance of the service provided by the program, and the resources available to the recipient.

Id. The DOJ LEP Guidance explains that the identification of Areasonable steps@ to provide oral and written services in languages other than English is to be determined on a case-by-case basis through a balancing of all four factors.

The failure to assure that people who are not proficient in English can effectively participate in, and have meaningful access to, a Department of Transportation (DOT) financial assistance recipient=s programs and activities may constitute national origin discrimination prohibited by Title VI and implementing regulations. Supreme Court precedent, and longstanding congressional provisions and federal agency regulations have repeatedly instructed that a nexus exists between language and national origin. As used throughout this Guidance, ADOT@ is intended to include all the Department=s operating administrations, components, and Secretarial offices.

This LEP Guidance addresses the key elements that DOT encourages its recipients to consider to ensure meaningful access to programs and activities by all people regardless of race or national origin. The purpose of the Guidance is to assist recipients in complying with their Title VI responsibilities to ensure that access to their programs or activities, normally provided in English, are accessible to LEP persons. The Guidance is consistent with the requirements of Executive Order 13166 and with the DOJ LEP Guidance.

During the development of this Guidance, DOT has ensured that stakeholders, such as LEP persons, their representative organizations, recipients, and other appropriate individuals and entities have had an adequate opportunity to provide input. Additional input is welcome.

Large numbers of minorities in the United States are linguistically isolated. According to the 1990 U.S. Census, 31.8 million persons or 13 % of the total U.S. population (ages 5 and above) speak a language other than English at home. Almost 2 million people do not speak English at all and 4.8 million people do not speak English well. The 1990 U.S. Census also found that various minority populations and subgroups are linguistically isolated: approximately 4 million Hispanics; approximately 1.6 million Asians and Pacific Islanders; approximately 282,000 Blacks; and approximately 77,000 Native Americans and Alaska Natives. Of those who speak Spanish in the United States, 97% are Hispanic. Research indicates that the correlation between language and national origin is also very high. As of 1989, 72.5% of Chinese Americans speak a language other than English at home. Comparable figures for other Asian Pacific Islander groups exist for Cambodians (81.9%), Vietnamese (80.7%), Laotians (77.4%), Thai (72.5%), Koreans (69.7%), Filipinos (59.9%), Indians (55.3%), and Japanese (40.5%).

School districts in many parts of the country are experiencing a substantial increase in the enrollment of national-origin-minority students who cannot speak, read, or write English well enough to participate meaningfully in educational programs without appropriate support services. There are approximately 3.5 million LEP students in the United States. The number of LEP students enrolled in public and nonpublic schools in the United States continues to increase each year. Between 1990 and 1997, the number of LEP students has risen by 57%. Most LEP students have parents whose skills in English are less than that of the students. The reported number of LEP students in K-12 public schools comprises 8% of the total public school enrollment in the United States. All states enroll LEP students. The states with the largest reported number of LEP students are California (1,381,383), Texas (513,634), and Florida (288,603). The states with the largest reported percentage of LEP students are Alaska (26%), New Mexico (24%), and California (22%). Since many public transportation providers also transport students to and from school, these figures are important.

In regard to one state alone, Pennsylvania ranks tenth among all states in the numbers of foreign-born persons who reside within its borders. Many of these individuals come to the United States with limited English skills, and are at varying stages of learning the English language. In all, more than seven percent of Pennsylvania=s residents speak a primary language other than English. It is estimated that Philadelphia alone is home to approximately 30,000 Vietnamese, 25,000 ethnic Chinese, 10,000 Cambodians, and 7,000 Laotians. According to the 1990 Census, approximately 54% of persons in Pennsylvania whose home language is an Asian language do not speak English very well.

Many welfare recipients wrestle with poor job skills, health problems, and lack of transportation, in addition to language barriers. Besides the social, cultural and linguistic barriers, which affect the delivery of adequate transportation services, there are other factors that contribute to the poor social service status of LEP persons. These factors include the following:

$ Inadequate number of health care providers and other health care professionals skilled in culturally competent and linguistically appropriate delivery of services.

$ Scarcity of trained interpreters at the community level.

$ Deficiency of knowledge about appropriate mechanisms to address language barriers in transportation settings.

$ Absence of effective partnerships between major mainstream provider organizations and LEP minority communities.

$ Low economic status.

$ Lack of insurance.

$ Organizational barriers.

One recipient reported to DOT as follows, regarding the barriers people who are LEP face in transportation:

Language barriers prohibit people who are LEP from obtaining services and information relating to transportation services and programs. Because people who are LEP are not able to read instructions or correspondence written in English and may not understand verbal information, they often are not aware of regulatory requirements and legal implications of the services they seek. People who are LEP also do not have the ability to read variable message signs which alert them to dangerous driving conditions. When people who are LEP receive Orders or other legal documents, they often do not understand the contents of the correspondence and its implication to their daily lives. People who are LEP may not be able to take advantage of the transit system, which could affect their job and social opportunities. When their home or business property is acquired by the State DOT, they may not be aware of or understand the benefits to which they are entitled. When individuals do not understand or read English, they are hampered in seeking employment opportunities.

It is essential that transportation providers, professionals, and other DOT recipients become informed about their diverse clientele from a linguistic, cultural and social perspective. These individuals should become culturally competent so they can encourage vulnerable LEP minority populations to access and receive appropriate transportation services with more knowledge and confidence.

Advantages to Recipients other than Providing Beneficiary Access to Special Language (Spillover Benefits)

Helping Prevent Complaints: DOT receives complaints from beneficiaries alleging that insufficient information has been provided by recipients to beneficiaries in the primary or home language of the beneficiaries. For example, in the current (as of the date of this guidance) Title VI administrative complaint, West Harlem Environmental Action v. New York Metropolitan Transportation Authority and New York City Transit, the complainants seek as a part of their requested relief, ATranslating all notices about impending depot and bus parking lot developments into Spanish.@ Providing such services before complaints are filed may help forestall such complaints and create better relations with beneficiary groups.

Economic Benefits: Translations of public transportation service documents may assist tourists and help establish localities as thoughtful and appropriate sites for global trade and investment.

II. Definitions:

Limited-English-Proficient Persons:

Individuals with a primary or home language other than English who must, due to limited fluency in English, communicate in that primary or home language if the individuals are to have an equal opportunity to participate effectively in or benefit from any aid, service or benefit provided by the transportation provider or other DOT recipient.

Linguistically Isolated:

This term is defined in the Census as the percentage of the persons in households in which no one over the age of 14 speaks English well, and is used as a direct measure of those persons with a severe language barrier, as distinct from those of foreign origin who speak English well. Those who are linguistically isolated may also be unable to benefit from transportation services and the services of other DOT recipients, and therefore should receive attention from recipients as a high priority.

Federal financial assistance:

The term Federal financial assistance to which Title VI applies includes but is not limited to grants and loans of Federal funds, grants or donations of Federal property, details of Federal personnel, or any agreement, arrangement or other contract which has as one of its purposes the provision of assistance.

Qualified interpreter:

Qualified interpreter means an interpreter who is able to interpret effectively, accurately, and impartially, either for individuals with disabilities or for individuals with limited English skills. The interpreter should be able to interpret both receptively and expressively, using any necessary specialized vocabulary.

Non-English language relay service:

A telecommunications relay service that allows persons with hearing or speech disabilities who use languages other than English to communicate with voice telephone users in a shared language other than English, through a communications assistant who is fluent in that language.

III. Legal Background:

Title VI of the Civil Rights Act of 1964 and its implementing regulations prohibit recipients of federal financial assistance from discriminating on the basis of race, color, or national origin. In certain circumstances, failure to provide meaningful access to LEP persons is national origin discrimination. Most of the statements in this Guidance pertain to services provided by a recipient, rather than employment by the recipient. However, employment discrimination is covered by Title VI if the federal financial assistance is provided for the purpose of employment or if employment discrimination results in discrimination against program beneficiaries.

In order to avoid discrimination against LEP persons on the grounds of national origin, Title VI and the DOT Title VI regulations require recipients to take reasonable steps to ensure that LEP persons receive the language assistance necessary to afford them meaningful access to their programs and activities. A useful test of compliance with this guidance is to ask the question, AIf we do not provide the service in question in a language a beneficiary understands, will the beneficiary still receive essentially the same benefit or service that we provide to others who are fluent in English?@

As discussed below, the framework for compliance with Title VI in this area is a flexible one, and DOT recognizes that a Aone-size-fits-all@ approach is not satisfactory. For instance, some recipients may have different Title VI LEP concerns in communities affected by their programs and activities, and may have different amounts of resources available. DOT also recognizes that some recipients are already addressing Title VI LEP concerns through existing programs and activities. We have tried to include examples of these efforts under Section IX, entitled APromising Practices/Best Practices.@ More examples are welcome.

Many recipients of Federal financial assistance recognize that the failure to provide language assistance to LEP persons may deny them vital access to programs or activities. The failure to remove language barriers can be attributed to many reasons ranging from ignorance of the fact that some members of the community are unable to communicate in English to intentional discrimination on the basis of national origin. While there is not always a direct relationship between an individual's language and national origin, language often serves as an identifier of national origin. As the Supreme Court observed in Hernandez v. New York,

[l]anguage elicits a response from others,...ranging from admiration and respect, to distance and alienation, to ridicule and scorn. Reactions of the latter type all too often result from or initiate racial hostility...It may well be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis.

500 U.S. 352, 371 (1991). The significant discriminatory effects that result from the failure to provide language assistance to LEP persons, places the treatment of LEP individuals comfortably within the ambit of Title VI and DOT=s implementing regulations.

In Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court recognized that, pursuant to Title VI, recipients of Federal financial assistance have an affirmative responsibility to provide LEP persons with a meaningful opportunity to participate in publicly funded programs. Lau involved a group of students of Chinese origin who did not speak English to whom the recipient provided the same services--an education provided solely in English--that it provided students who did speak English. The Court held that, under these circumstances, the school district's practice violated the Title VI prohibition against discrimination on the basis of national origin. The Court observed that A[i]t seems obvious that the Chinese-speaking minority receive fewer benefits than the English-speaking majority from respondents' school system which denies them a meaningful opportunity to participate in the educational program--all earmarks of the discrimination banned by'' the Title VI regulations. Courts have applied the doctrine enunciated in Lau both inside and outside of the educational context. It has been considered in contexts as varied as what languages drivers' license tests must be given in, to whether material relating to unemployment benefits must be provided in a language other than English.

Most recently, and in a transportation context, the Eleventh Circuit in Sandoval v. Hagan, 197 F. 3rd 484 (11^th Cir. 1999) petition for certiorari granted, Alexander v. Sandoval, 121 S.Ct. 28 (Sept. 26, 2000) (No. 99-1908) held that the State of Alabama=s policy of administering a driver=s license examination only in English was a facially neutral practice that had a disproportionate adverse effect on the basis of national origin, in violation of Title VI. The Court specifically noted the nexus between language policies and potential discrimination based on national origin. That is, in Sandoval, the vast majority of individuals who were adversely affected by Alabama=s English-only driver=s license examination policy were of foreign descent. It is interesting to note that the State produced no evidence at trial that non-English speakers pose greater highway safety risks than English speakers.

The Title VI regulations prohibit both intentional discrimination and policies and practices that appear neutral but have a discriminatory effect. Thus, a recipient=s policies or practices regarding the provision of benefits and services to LEP persons need not be intentional to be discriminatory, but may constitute a violation of Title VI if they have a disproportionate adverse effect on LEP persons= ability to access programs and services. Accordingly, it is useful for recipients to examine their policies and practices to determine whether they adversely affect LEP persons disproportionately. This LEP Guidance provides a legal framework to assist recipients in conducting such assessments. Title VI prohibits discrimination in any program or activity that receives Federal financial assistance. What constitutes a program or activity covered by Title VI was clarified by Congress when the Civil Rights Restoration Act of 1987 (CRRA) was enacted. The CRRA provides that, in most cases, when a recipient receives Federal financial assistance for a particular program or activity, all operations of the recipient are covered by Title VI, not just the part of the program that uses the Federal assistance. Thus, all parts of the recipient=s operations would be covered by Title VI, even if the Federal assistance is used only by one part.

The Department of Justice is the principal federal agency for coordinating Title VI requirements. The obligation on the part of recipients to address the language needs of beneficiaries has been a long-standing part of its Title VI coordination policies. See 28 CFR 42.405(d)(1) (1976). Moreover, other federal agencies have adopted Title VI enforcement policies that the denial of benefits to non-English speakers may result in a disparate impact based on national origin in violation of Title VI. For example, inability to drive a car adversely affects individuals in the form of lost economic opportunities, social services, and other quality of life pursuits.

State or local "English-only" laws:

State and local laws may provide additional obligations to serve LEP individuals, but such laws cannot compel recipients of federal financial assistance to violate Title VI. For instance, given our constitutional structure, state or local AEnglish-only@ laws do not relieve an entity that receives federal funding from its responsibilities under federal anti-discrimination laws. State and local entities with AEnglish-only@ laws are certainly not required to accept federal funding B- but if they do, they have to comply with Title VI and its implementing regulations, including their prohibition against national origin discrimination by recipients of federal assistance. Failing to make federally assisted programs and activities accessible to individuals who are LEP will, in certain circumstances, violate Title VI.

In Sandoval v. Hagan, the Court of Appeals for the Eleventh Circuit found that Alabama=s AEnglish-Only policy@ had a significant disparate impact on foreign-born individuals, and imposed significant adversity on individuals by excluding otherwise qualified drivers from obtaining licenses. It enjoined the continued use of the AEnglish-Only policy@ and ordered Alabama to submit a plan for compliance. People with licenses can get to work in places not served by public transportation and earn better wages. The inability to drive also may stand in the way of satisfying other important needs, such as the need to get emergency medical attention, particularly in rural areas not served by public transportation. Additionally, driver=s licenses are the most common form of identification in this country; without one, it is difficult to take part in the life of the community C opening a bank account, cashing a check, getting a library card, etc. For these many reasons, the inability of LEP persons to obtain driver=s licenses presents serious problems.

IV. Ensuring Meaningful Access to LEP Persons:

Title VI and its regulations require recipients to take reasonable steps to ensure Ameaningful'' access to DOT recipients= programs and activities. The key to providing meaningful access to LEP persons is to ensure that recipients and LEP beneficiaries can communicate effectively and act appropriately based on that communication. Thus, DOT recipients should take reasonable steps to ensure that LEP persons are given adequate information, are able to understand that information, and are able to participate effectively in recipient programs or activities, where appropriate. As the demographics of the United States continue to change and the proportion of LEP communities and populations continue to grow, a recipient=s challenge (as well as DOT=s challenge) will be to develop linguistically appropriate and effective methods of communication with LEP persons within the usual, tight resource constraints.

A. Assessment of Meaningful Access

DOT=s main focus when evaluating a Title VI complaint based on allegations of national origin discrimination against LEP persons will be whether a recipient has taken reasonable steps to eliminate barriers to meaningful communication with LEP individuals and to provide necessary services equivalent to those provided to people who are fully English proficient. What Areasonable steps@ should be taken will depend upon a number of factors. These factors include the following:

$ The number and proportion of LEP persons potentially served by the recipient=s programs or activities, and the variety of languages spoken in the recipient=s service area:

The recipient should consider the number or proportion of people who will be excluded from participation in programs or activities without efforts to remove language barriers. Programs and activities that affect a few or even one LEP person are subject to the Title VI obligation to take reasonable steps to provide meaningful opportunities to obtain services. Nevertheless, the steps that are reasonable for a recipient whose programs or activities affect one LEP person a year may be different than those expected from a recipient whose program or activity affects many LEP persons on a regular basis. However, DOT encourages even those recipients whose programs or activities affect very few LEP persons on an infrequent basis to consider reasonable steps for involvement of LEP persons and to plan for situations in which LEP persons will be affected under the program or activity in question. This plan need not be intricate; it may be as simple as having certain public notices translated into a language other than English, providing an interpreter under certain conditions, or making available technological solutions such as a telephone language line.

$ The frequency with which LEP individuals are affected by the program or activity:

The frequency with which LEP persons are affected by the programs or activities is also important. DOT encourages recipients to take into account the frequency with which the recipient=s program or activity may affect LEP persons in its service area and to have the flexibility to tailor its actions to those needs. For example, if the recipient knows that there is a large LEP community that exists and that community is often impacted by the recipient=s programs and activities, it may want to regularly translate notices of public hearings and post them in areas where LEP individuals will see them. DOT encourages recipients to use communication methods likely to reach the affected community (e.g., insert information with utility bills, place public service announcements on local radio shows, place notices on bulletin boards in grocery stores, houses of worship, community newspapers and community centers). In the notices, you can provide the option of translation services at public hearings if individuals contact you by a certain date. This way, if no one responds you do not expend valuable resources when no actual need for translation services exists.

Notices and information that are generally available to the public should be made available to substantial LEP populations. For example, weather and road condition telephone lines and websites should be available in translation. In areas with severe weather, such notices will probably rise to the level of safety issues, and therefore require the higher level of service described elsewhere in this guidance.

$ The importance of the effect of the recipient=s program or activity on LEP persons, bearing in mind that transportation is considered an essential service to participation in modern society:

The importance of the effects of the recipient=s program or activity on LEP persons has a direct bearing on the reasonableness of steps taken to ensure meaningful participation. DOT encourages you to take more vigorous steps where the denial or delay of access may have more crucial implications than in situations that are not as crucial to one=s day-to-day activities. For example, the obligations of federally-assisted health, emergency, hazardous materials, and safety efforts differ from those of a Federally-assisted program where safety or health is not at stake. DOT encourages you to consider the importance of the participation in the program or activity to individuals both immediately and in the long-term, as well as synergistic effects. In a study done in 1995, all Emergency Medical Services (EMS) personnel who participated referred to language as a principal challenge in effectively working with Hispanic community members. In addition, many recently arrived Hispanics are not accustomed to using the telephone to access emergency medical services. Such circumstances justify greater efforts by recipients to educate LEP individuals, as discussed elsewhere in this Guidance. In addition, inability to access public transportation may adversely effect ability to obtain health care, education, and jobs.

$ The resources available to the recipient, and whether the recipient has budgeted for provision of special language services:

Resources of a recipient may be a factor in determining the level and kind of language services it should provide. Larger recipients with more resources will have more language service responsibilities than smaller recipients with few resources. DOT will use a reasonableness standard in evaluating whether a recipient=s efforts are sufficient. Where excessive cost is proffered by a recipient as a reason for not undertaking necessary special language services, DOT will evaluate the situation on a case-by-case basis. DOT=s evaluation will include a consideration of the totality of the recipient=s circumstances, including the size of the budget of the largest organizational entity which supervises the work of the program, project or activity that directly receives DOT financial assistance. For example, for a unit of a state department of transportation, the budget of the entire state DOT will be used as a point of reference. Other considerations will include those listed elsewhere in this Guidance, such as the size of the LEP population needing services, the degree to which such populations have been historically excluded from services, the availability of less costly alternative service modalities, whether the costs can be amortized over time or are a one-time expense, whether services can be phased in to avoid excessive cost in any one year, the possibility of alternate sources of funds to pay for the necessary services, whether the services are required in response to complaints or law suits, and how long the recipient has been on notice that the special language services should be provided. Note that Title VI has been in existence since 1964, and that recipients have been on notice that discrimination on the basis of national origin has been prohibited since then.

$ The level of services provided to fully English proficient people;

$ Whether LEP persons are being excluded from services, or being provided a lower level of services:

Only under rare circumstances could this exclusion be justified, and the burden of proving the need for the exclusion would be very high. Example 1: The recipient provides no services to a neighborhood where LEP people live, while providing services to a neighborhood where fully English proficient people live. Example 2: Several years ago, a job access program funded by DOT=s Federal Transit Administration stated in its brochures that eligible applicants must Aspeak English.@ Note that the prohibition on exclusion due to national origin would also apply to situations where a recipient excluded a beneficiary from bringing an interpreter to a meeting, test, or other formal situation with the recipient. Although DOT discourages reliance by recipients on beneficiary-supplied interpreters, if the beneficiary desires to use one, and the recipient does not supply an interpreter, the recipient should permit his/her use. DOT recognizes that issues of security of testing are sometimes thought to arise when an non-recipient-supplied interpreter translates for a beneficiary. These issues are the responsibility of the recipient. If security is felt to be a potential problem by a recipient, the recipient bears the burden of supplying the interpreter.

$ Whether the recipient has adequate justification for restrictions, if any, on special language services or speaking languages other than English:

Such justifications would be accepted only in rare circumstances. Assertions of safety justifications would generally not be accepted unless accompanied by statistical and/or scientific causality studies and evidence showing a positive correlation between limited English proficiency and crash and death/injury rates at rates substantially higher than would be expected due to chance.

There is no one-size fits all solution for Title VI compliance with respect to LEP persons. When investigating a Title VI complaint, DOT will assess language assistance allegations on a case-by-case basis, and will afford considerable flexibility to recipients to determine precisely how to fulfill this obligation. DOT will focus on the end result B whether recipients have taken the necessary steps to ensure that LEP persons have meaningful access to participate in their programs and activities, and whether those services are being provided so that LEP persons have an equal opportunity to benefit from recipients= services.

V. Compliance and Enforcement:

The recommendations outlined in this Guidance are not intended to be exhaustive. Recipients should establish and implement policies and procedures for providing language assistance sufficient to fulfill their Title VI responsibilities and provide LEP persons with meaningful access to services. DOT enforces Title VI as it applies to recipients= responsibilities to LEP persons through the procedures provided for in DOT=s Title VI regulations (49 CFR Part 21, see Appendix A), and in appropriate DOT operating administration regulations. These procedures include complaint investigations, compliance reviews, alternative dispute resolution, efforts to secure voluntary compliance and technical assistance.

DOT=s Title VI regulations provide that the agency will investigate whenever it receives a complaint, report or other information that alleges or indicates possible noncompliance with Title VI. If the investigation results in a finding of compliance, DOT will inform the recipient and the complainant in writing of this determination, including the basis for the determination. If the investigation results in a finding of noncompliance, DOT 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, and must attempt to secure voluntary compliance through informal means. If the matter cannot be resolved informally, DOT must secure compliance through (a) the termination of Federal assistance after the recipient has been given an opportunity for an administrative hearing, (b) referral to DOJ for injunctive relief or other enforcement proceedings, or (c) any other means authorized by law.

As the Title VI regulations set forth in the Appendix indicate, DOT has a legal obligation to seek voluntary compliance in resolving cases and cannot seek the termination of funds until it has engaged in voluntary compliance efforts and has determined that compliance cannot be secured voluntarily. During these efforts to secure voluntary compliance, DOT consults with and assists recipients entities in exploring cost effective ways of coming into compliance, by sharing information on potential community resources, by increasing awareness of emerging technologies, by sharing information on how other recipients entities have addressed the language needs of diverse populations, and by proposing reasonable timetables for achieving compliance.

Whenever possible, DOT provides recipients with technical assistance upon request and an opportunity to come into voluntary compliance with Title VI prior to initiating formal enforcement proceedings. In determining a recipient=s compliance with Title VI, the Departmental Office of Civil Rights= (DOCR) primary concern is to ensure that the recipient=s policies and procedures allow LEP persons to overcome language differences that result in barriers and have a meaningful opportunity to participate in and access programs, services and benefits to the same extent as fully English proficient persons. A recipients=s appropriate use of the methods and options discussed in this policy guidance will be viewed by DOCR as evidence of a recipient=s willingness to comply voluntarily with its Title VI obligations.

Further, when reviewing any claim of discrimination, DOT considers the severity of the adverse impact on LEP persons, the egregiousness or pervasiveness of any adverse action taken by a recipient, and whether the recipient has shown an intent to discriminate. Assurance Forms:

When organizations apply for DOT financial assistance, they submit an assurance with their applications that they will comply with the requirements of DOT=s regulations implementing Title VI with respect to their programs and activities. When they receive DOT financial assistance, they accept the obligation to comply with DOT=s Title VI implementing regulations. These assurances should be understood to include provision of services to national origin minority persons who are limited English proficient.

VI. Framework for Language Assistance:

DOT has determined that effective language assistance programs usually address each of the elements described below. The failure to incorporate or implement one or more of these elements does not necessarily indicate noncompliance with Title VI. When investigating Title VI complaints, DOT will review the totality of the circumstances to determine whether LEP persons have had meaningful access to participate effectively in a recipient=s programs and activities.

1. Needs Assessment: A recipient should conduct a thorough assessment of the language needs of the population and communities affected by the recipient.

The first key to ensuring meaningful access to LEP persons is to assess the language needs of the affected population and communities served, through application of the analysis described elsewhere in this Guidance. Ways to assess language needs include identifying the non-English languages used in communities affected by the recipient, estimating how many people speak each language, where they live, and how well they are currently accessing services provided to those who are fully English proficient. After identifying LEP communities, DOT encourages recipients to consider any barriers to communication with these communities. It is possible that, in certain instances, the results of the assessment may indicate that, although LEP communities are affected by the programs and activities, there are no barriers to communication with these communities, because they are bilingual, for instance, or do not need or want translation services.

An approach may be developed to identify geographic areas where LEP communities live using existing resources such as census data, data from local organizations and community groups, faith-based groups that provide services in languages other than English, immigrant aid organizations, state refugee coordinators, non-English media outlets, and school district LEP statistics. The latter are particularly valuable, since all school districts are required to maintain data on LEP students and provide necessary special language services. It is important to collaborate with community groups and other appropriate stakeholders to develop the criteria for identifying geographic areas. Once the areas are identified, the recipient can work with the affected communities and stakeholders to determine their language assistance needs. The recipient may also choose to identify actual or potential populations within a particular service area or area of responsibility.

Specifically, DOT encourages recipients to identify linguistically isolated populations or job sites in which LEP persons represent a significant proportion of the workforce (e.g., manual labor, hotel cleaning, food preparation, auto supplies, etc.) Transportation entities in particular should be aware of the potential difficulties LEP people may have in public transportation from home to work, health facilities, schools, shopping, faith-based facilities, day-care, and leisure activities. New immigrants to the United States from non-English speaking countries may be especially in need of special language services. Note that Title VI of the Civil Rights Act of 1964 covers Apeople in the United States.@ Thus, recipients may generally not refuse to provide services to non-citizens, regardless of immigration status.

Identifying the points of contact in the program or activity where language assistance is likely to be needed, identifying the resources that will be needed to provide effective language assistance, identifying the location and availability of these resources, and identifying the arrangements that should be made to access these resources in a timely manner are important factors to ensure effective provision of services.

2. Written Language Assistance Plan: Recipients should develop and implement written language assistance plans that will ensure meaningful opportunities for LEP persons to access their programs and activities and effectively participate in them.

A recipient can help ensure effective communication with LEP persons by developing and implementing a comprehensive, written language assistance plan. Such a plan should include policies and procedures for identifying and assessing the language needs of LEP persons, and provide for a range of written and oral language assistance options, periodic training of staff, actual provision of services, and monitoring of the program. DOT encourages recipients to consider the transportation needs of the LEP community affected by the recipient=s programs and activities while developing this plan. The factor analysis set forth in this Guidance should be the starting point for identifying areas in which language services are needed.

DOT encourages recipients to consider one or more of the following ideas as they develop language assistance plans:

$ Assigning primary responsibility for development and implementation of the plan to an appropriate manager or supervisor.

$ Preparing a written summary of results from the needs assessment (discussed above).

$ Identifying actions already being taken and existing tools that can be used to provide meaningful access to LEP individuals, and how well they work.

$ Creating an inventory of existing materials that have been translated into other languages to assist LEP individuals.

$ Regularly updating the inventory of translated materials.

$ Drafting a plan that is specific and detailed, yet flexible enough to respond to existing or potential needs over an appropriate time period (i.e., five years).

$ Ensuring that translation arrangements have quality control (i.e., mechanisms are in place to ensure that the translation accurately and appropriately conveys the substance of what is contained in the written materials).

$ Distributing the names of organizational contacts who will respond to inquiries and requests regarding access to programs and activities by LEP individuals, in appropriate media and publications.

$ Addressing the appropriate mix of written and oral language assistance to ensure effective communication with the LEP population.

A plan should generally include:

$ Who is responsible for each step.

$ When each step is expected to be completed. (Generally speaking, the more vital the service, the sooner it should be provided.)

$ What standards and criteria are to be applied to measure the effectiveness of each step.

$ What resources will be devoted to each step.

$ How the recipient will document implementation of each step.

3. Staff Training: Recipients should ensure that staff understand the recipient=s language assistance policy and are capable of carrying it out.

The success of recipients= LEP/Title VI activities will depend on the staff=s knowledge, credibility, and actions. DOT encourages recipients to disseminate the recipient=s policy to all employees likely to have contact with LEP persons and to periodically train employees. Effective training, which includes cultural and community relations sensitization, is one way to ensure that there is not a gap between your policies and procedures and the actual practices of employees who interact with LEP persons. Effective training ensures that employees are knowledgeable and aware of LEP policies and procedures, can work effectively with in-person and telephone interpreters, and understand the dynamics of interpretation between beneficiaries, providers and interpreters. It is important that this training be part of the orientation for new employees and all employees in beneficiary contact positions should be properly trained. Given the high turnover rate among some types of employees, a recipient may find it useful to maintain a training registry that records the names and dates of employees= training.

4. Provision of Special Language Assistance: Recipients must actually provide necessary services to LEP persons.

Most important to any LEP plan is to actually provide the necessary services. Actual provision of services includes notification of the availability of services. A vital part of an effective compliance program includes having effective methods for notifying LEP persons regarding their right to language assistance and the availability of such assistance free of charge. These methods include but are not limited to:

$ Use of language identification cards that allow LEP beneficiaries to identify their language needs to staff and for staff to identify the language needs of applicants and clients. To be effective, the cards (e.g., AI speak cards@) should invite the LEP person to identify the language he/she speaks. This identification can be recorded in the LEP person=s file, if the recipient keeps such files on beneficiaries.

$ Posting and maintaining signs in regularly encountered non-English languages in waiting rooms, reception areas and other initial points of entry. In order to be effective, these signs should inform applicants and beneficiaries of their right to free language assistance services and invite them to identify themselves as persons needing such services.

$ Translation of application forms and instructional, informational and other written materials into appropriate non-English languages by competent translators. For LEP persons whose language does not exist in written form, assistance should be provided from an interpreter to explain the contents of the document. LEP persons may need assistance, for example, however, in filling out forms such as those for transit half-fare benefits or paratransit eligibility under the Americans with Disabilities Act.

$ Uniform procedures for timely and effective telephone communication between staff and LEP persons. This should include instructions for English-speaking employees to obtain assistance from interpreters or bilingual staff when receiving calls from or initiating calls to LEP persons, and

$ Inclusion of statements about the services available and the right to free language assistance services, in appropriate non-English languages, in brochures, booklets, outreach and recruitment information and other materials that are routinely disseminated to the public.