This policy guidance is consistent with a Department of Justice (DOJ) directive noting that recipient/covered entities have an obligation pursuant to Title VI's prohibition against national origin discrimination to provide oral and written language assistance to persons who have a Limited English Proficiency (LEP.) It is also consistent with a government-wide Title VI regulation issued by DOJ in 1976, "Coordination of Enforcement of Nondiscrimination in Federally Assisted Programs," 28 C.F.R. Part 42, Subpart F, that addresses the circumstances in which recipient/covered entities must provide written language assistance to LEP persons.
II. Purpose and Application
The Title VI regulations prohibit both intentional discrimination and policies and practices that appear neutral but have a discriminatory effect. Thus, a recipient entity'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 an adverse effect on the ability of national origin minorities to meaningfully access programs and services. Accordingly, it is useful for recipient entities to examine their policies and practices to determine whether they adversely affect LEP persons. This policy guidance provides a legal framework to assist recipient/covered entities in conducting such assessments.
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. Section 2000d et. seq. states: "No person in the United States 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." This is further ordered by Executive Order 13166, "Improving Access to Services for Persons With Limited English Proficiency, " and United States Department of Justice Guidance as published in the Federal Register, Vol. 65, No. 159, August 16, 2000.
IV. The Framework for Compliance
A four-factor analysis is recommended for compliance. It should consist of a determination of the number or proportion of eligible individuals with LEP who might be excluded from a program absent efforts to remove language barriers, their frequency of contact with the program, the nature and importance of the program (is it vital to your existence?), and the resources available. Once it is established that a need exists, one or both of two types of language assistance may be appropriate. Oral language interpretation and/or written material translation may be selected as necessary. Elements of an effective language assistance plan to consider are identification of LEP Individuals who need language assistance, available language assistance options, training staff, providing notice to LEP persons, and monitoring effectiveness and need for modifications.
IV. Compliance and Enforcement
The recommendations outlined above are not intended to be exhaustive. Recipient entities have considerable flexibility in determining how to comply with their legal obligation in the LEP setting, and are not required to use all of the suggested methods and options listed. However, recipient entities must 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. NSF's regulations implementing Title VI contain compliance and enforcement provisions to ensure that a recipient's policies and practices overcome barriers resulting from language barriers that would deny LEP persons an equal opportunity to participate in and access to programs, services and benefits offered by NSF. See 45 C.F.R., Part 611. We will ensure that our recipient entities fulfill their responsibilities to LEP persons through the procedures provided for in the Title VI regulations.
In determining a recipient entity's compliance with Title VI, NSF's primary concern is to ensure that the entity's policies and procedures overcome barriers resulting from language differences that would deny LEP persons a meaningful opportunity to participate in and access programs, services and benefits. A recipient entity's appropriate use of the methods and options discussed in this policy guidance will be viewed by NSF as evidence of that entity's willingness to comply voluntarily with its Title VI obligations.
If you have any questions related to this policy, please contact the NSF Office of Equal Opportunity Programs.
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Mar 25, '02