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“EO Is the Law” and “EEO is THE LAW”: Understanding Some of The Distinctions

Monday, August 1st, 2016

Depending on your source(s) of federal funding, there are certain required notices and posters that must be displayed prominently throughout areas where you meet, greet, and work with members of your public.  For example, if you receive funding from the U.S. Department of Housing and Urban Development for public housing, you are required to place “Fair Housing is The Law” posters throughout the areas where you interact with the public. For entities that receive funding from the U.S. Department of Health and Human Services, you are required to post the “Non-Discrimination Notice and Non-Discrimination Statement.” Recipients of funding by the U.S. Department of Education also must post a nondiscrimination notice.

These notices and posters are intended to promote compliance with federal civil rights laws by notifying members of (1) the public of their right to nondiscrimination, and (2) your staff of their obligations to conduct programs and activities in compliance with applicable civil rights laws.

Knowing what federal posters to display in the area of equal opportunity often can be confusing.  And, this is particularly true for Equal Opportunity (EO) Officers of agencies, organizations, and other entities that deliver services, aid, training, and benefits funded under Title I of the Workforce Innovation and Opportunity Act (WIOA), amending the Workforce Investment Act (WIA).  For WIOA-funded programs and activities, the “Equal Opportunity is The Law” (referred to as “EO Is the Law”) poster must be prominently displayed throughout all public areas.  Recipients of WIOA Title I-financial assistance include state and local governments, American Job Network centers, Job Corps centers, local Workforce Investment Boards, Unemployment Insurance call centers, colleges, universities, and many other providers involved in the system of delivering WIOA Title I-related aid, benefits, services, and training.

The “EO Is the Law” poster, however, is often confused with the Equal Employment Opportunity Commission’s “Equal Employment Opportunity is The Law” (referred to as the “EEO Is the Law”) poster.  Similarities in the titles of these notices often lead to confusion in understanding some of their differences.

For purposes of this paper, we will assume you serve as the EO Officer for an entity offering WIOA-funded workforce development programs and activities.  By law, the “EO Is the Law” notice must be prominently displayed throughout your public areas.  29 C.F.R. § 37.30 (WIA); 29 C.F.R. § 38.34, 38.36, and 38.39 (WIOA).

    The “Equal Opportunity Is the Law” notice

Equal Opportunity Is the Law

 It is against the law for this recipient of Federal financial assistance under WIOA-Title I to discriminate on the following bases:

against any individual in the United States, on the basis of race, color, religion, sex, national origin, age, disability, political affiliation or belief; and

against any beneficiary of programs financially assisted under Title I of the Workforce Innovation and Opportunity Act of 2014 (WIOA), on the basis of the beneficiary’s citizenship/status as a lawfully admitted immigrant authorized to work in the United States, or his or her participation in any WIOA Title I-financially assisted program or activity.

The recipient must not discriminate in any of the following areas:

deciding who will be admitted, or have access, to any WIOA-Title I financially assisted program or activity;

providing opportunities in, or treating any person with regard to, such a program or activity; or

making employment decisions in the administration of, or in connection with, such a program or activity.

 What to Do If You Believe You Have Experienced Discrimination

 If you think that you have been subjected to discrimination under a WIOA Title I-financially assisted program or activity, you may file a complaint within 180 days from the date of the alleged violation with either:

the recipient’s Equal Opportunity Officer (or the person whom the recipient has designated for this purpose); or

the Director, Civil Rights Center (CRC), U.S. Department of Labor, 200 Constitution Avenue NW, Room N-4123, Washington, DC 20210.

If you file your complaint with the recipient, you must wait either until the recipient issues a written Notice of Final Action, or until 90 days have passed (whichever is sooner), before filing with the Civil Rights Center (see address above).

If the recipient does not give you a written Notice of Final Action within 90 days of the day on which you filed your complaint, you do not have to wait for the recipient to issue that Notice before filing a complaint with CRC. However, you must file your CRC complaint within 30 days of the 90-day deadline (in other words, within 120 days after the day on which you filed your complaint with the recipient).

If the recipient does give you a written Notice of Final Action on your complaint, but you are dissatisfied with the decision or resolution, you may file a complaint with CRC. You must file your CRC complaint within 30 days of the date on which you received the Notice of Final Action.

√    Initial and continuing notice required

As the EO professional for a recipient of WIOA-Title I financial assistance, you must ensure that “initial and continuing notice” is provided.  29 C.F.R. § 37.29 (WIA); 29 C.F.R. § 38.34, 38.36, and 38.39 (WIOA).  What does this mean?

This means the “EO Is the Law” notice must be “prominently” posted in a variety of places at your center, agency, facility, office headquarters, and the like.  And, it must be available in an alternative formats for persons with disabilities.

You must document initial and continuing notice to a beneficiary or potential beneficiary.  For this reason, you must ensure there is “a record that such notice has been given” in “the participant’s file.”

Persons who are limited English proficient (LEP) also must receive notice.  Consequently, the “EO Is the Law” notice should be available in appropriate languages.  Check with your state EO leadership, or with the U.S. Department of Labor’s Civil Rights Center, for LEP-related materials, including versions of the “EO Is the Law” notice in other languages.  The U.S. Department of Justice Web site, at www.lep.gov, also offers valuable guidance.  

Providing notice on a “continuing basis” means, in addition to prominently-placed posters, the notice must be communicated through internal memoranda and other written or electronic communications.  It must be included in your handbooks and materials.

Continuing notice extends to including taglines that the recipient is an “equal opportunity employer/program,” and “auxiliary aids and services are available upon request to persons with disabilities” in your:

●     recruitment brochures;

●    orientation materials and presentations;

●    written and oral communications to staff, clients, or the public regarding WIOA-Title I programs and activities; and

●    publications and broadcasts regarding the WIOA-Title I programs and activities.

Moreover, during each orientation session, you must include a discussion of rights under WIOA’s nondiscrimination and equal opportunity provisions at Section 188, including the right to file a complaint of discrimination with the Director of the U.S. Department of Labor’s Civil Rights Center.

    The “EEO Is the Law” notice

The “EEO Is the Law” notice was developed by the U.S. Equal Employment Opportunities Commission (EEOC).  The EEOC’s “EEO Is the Law” notice reads, in part, as follows:

Equal Employment Opportunity is THE LAW

 Private Employers, State and Local Governments, Educational Institutions, Employment Agencies and Labor Organizations

Applicants to and employees of most private employers, state and local governments, educational institutions, employment agencies and labor organizations are protected under Federal law from discrimination on the following bases:

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN

Title VII of the Civil Rights Act of 1964, as amended, protects applicants and employees from discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of race, color, religion, sex (including pregnancy), or national origin. Religious discrimination includes failing to reasonably accommodate an employee’s religious practices where the accommodation does not impose undue hardship.

DISABILITY

Title I and Title V of the Americans with Disabilities Act of 1990, as amended, protect qualified individuals from discrimination on the basis of disability in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. Disability discrimination includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, barring undue hardship.

AGE

The Age Discrimination in Employment Act of 1967, as amended, protects applicants and employees 40 years of age or older from discrimination based on age in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment.

SEX (WAGES)

In addition to sex discrimination prohibited by Title VII of the Civil Rights Act, as amended, the Equal Pay Act of 1963, as amended, prohibits sex discrimination in the payment of wages to women and men performing substantially equal work, in jobs that require equal skill, effort, and responsibility, under similar working conditions, in the same establishment.

GENETICS

Title II of the Genetic Information Nondiscrimination Act of 2008 protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. GINA also restricts employers’ acquisition of genetic information and strictly limits disclosure of genetic information. Genetic information includes information about genetic tests of applicants, employees, or their family members; the manifestation of diseases or disorders in family members (family medical history); and requests for or receipt of genetic services by applicants, employees, or their family members.

RETALIATION

All of these Federal laws prohibit covered entities from retaliating against a person who files a charge of discrimination, participates in a discrimination proceeding, or otherwise opposes an unlawful employment practice.

WHAT TO DO IF YOU BELIEVE DISCRIMINATION HAS OCCURRED

There are strict time limits for filing charges of employment discrimination. To preserve the ability of EEOC to act on your behalf and to protect your right to file a private lawsuit, should you ultimately need to, you should contact EEOC promptly when discrimination is suspected: The U.S. Equal Employment Opportunity Commission (EEOC), 1-800-669-4000 (toll-free) or 1-800-669-6820 (toll-free TTY number for individuals with hearing impairments). EEOC field office information is available at www.eeoc.gov or in most telephone directories in the U.S. Government or Federal Government section. Additional information about EEOC, including information about charge filing, is available at www.eeoc.gov.

Employers Holding Federal Contracts or Subcontracts

Applicants to and employees of companies with a Federal government contract or subcontract are protected under Federal law from discrimination on the following bases:

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN

Executive Order 11246, as amended, prohibits job discrimination on the basis of race, color, religion, sex or national origin, and requires affirmative action to ensure equality of opportunity in all aspects of employment.

INDIVIDUALS WITH DISABILITIES

Section 503 of the Rehabilitation Act of 1973, as amended, protects qualified individuals from discrimination on the basis of disability in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. Disability discrimination includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, barring undue hardship. Section 503 also requires that Federal contractors take affirmative action to employ and advance in employment qualified individuals with disabilities at all levels of employment, including the executive level.

DISABLED, RECENTLY SEPARATED, OTHER PROTECTED, AND ARMED FORCES SERVICE MEDAL VETERANS

The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212, prohibits job discrimination and requires affirmative action to employ and advance in employment disabled veterans, recently separated veterans (within three years of discharge or release from active duty), other protected veterans (veterans who served during a war or in a campaign or expedition for which a campaign badge has been authorized), and Armed Forces service medal veterans (veterans who, while on active duty, participated in a U.S. military operation for which an Armed Forces service medal was awarded).

RETALIATION

Retaliation is prohibited against a person who files a complaint of discrimination, participates in an OFCCP proceeding, or otherwise opposes discrimination under these Federal laws.

Any person who believes a contractor has violated its nondiscrimination or affirmative action obligations under the authorities above should contact immediately:

The Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210, 1-800-397-6251 (toll-free) or (202) 693-1337 (TTY). OFCCP may also be contacted by e-mail at OFCCP-Public@dol.gov, or by calling an OFCCP regional or district office, listed in most telephone directories under U.S. Government, Department of Labor.

√    Comparing the notices

Comparing the “EO Is the Law” notice with the “EEO is THE LAW” notice, we see both notices set forth nondiscrimination requirements, and inform us regarding where to file a discrimination complaint.  However, the “EEO is THE LAW” notice is limited to addressing nondiscrimination with regard to employment practices, whereas the “EO Is the Law” notice is much broader—it applies to employment practices of WIOA-Title I funded recipients and sub-recipients as well as the entire system of delivering WIOA-Title I funded aid, training, benefits, and services to the public.

Moreover, while some “bases” of prohibited discrimination are the same in the two notices (race, color, national origin, religion, disability, gender), there also are important differences.  For example, the WIOA-related “EO Is the Law” notice also prohibits discrimination on the bases of citizenship, WIOA participant status, and political affiliation.  And, the “EEO is THE LAW” notice prohibits discrimination in employment practices on the basis of genetics.

Additionally, although both notices prohibit discrimination on the basis of age, the “EEO is THE LAW” nondiscrimination provisions apply to persons over 40 years of age in the workplace.  But, the age-based nondiscrimination provisions of the “EO Is the Law” notice prohibit discrimination on the basis of any age in WIOA-Title I-related employment practices as well as in the delivery of WIOA-Title I funded programs and activities.

Finally, both notices provide instructions for filing discrimination complaints, but we see the complaints are filed at different locations.  The WIOA-related “EO Is the Law” notice provides that complaints may be filed within 180 days of the date of the adverse action with:

√  the recipient’s Equal Opportunity Officer (or the person whom the recipient has designated for this purpose); or

√ the Director, Civil Rights Center (CRC), U.S. Department of Labor, 200 Constitution Avenue NW, Room N-4123, Washington, DC 20210.

This is compared to the discrimination complaint process set forth in the “EEO is THE LAW” notice, which provides:

There are strict time limits for filing charges of employment discrimination. To preserve the ability of EEOC to act on your behalf and to protect your right to file a private lawsuit, should you ultimately need to, you should contact EEOC promptly when discrimination is suspected: The U.S. Equal Employment Opportunity Commission (EEOC), 1-800-669-4000 (toll-free) or 1-800-669-6820 (toll-free TTY number for individuals with hearing impairments). EEOC field office information is available at www.eeoc.gov or in most telephone directories in the U.S. Government or Federal Government section. Additional information about EEOC, including information about charge filing, is available at www.eeoc.gov.

√    Conclusion

If you operate WIOA-Title I financially assisted programs and activities, you must prominently display, and provide initial and ongoing notice of, the U.S. Department of Labor’s “Equal Opportunity Is The Law” notice at your agency, American Job Network Centers (also known as “One Stops”), Local Workforce Investment Board offices, Unemployment Insurance call centers, Job Corps Centers, operator offices, service provider locations, and the like.  You cannot rely solely on the “EEO is THE LAW” notice to meet this requirement.  And, this notice must be provided to each participant of your WIOA-Title I financially assisted programs and activities, and this must be documented in each participant’s file (usually this is accomplished by placing a copy of the notice with the participant’s signature on it in the participant’s file).

About Seena Foster

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting in Alexandria, Virginia, provides expertise and guidance in the areas of civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted workforce development programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at seena@titleviconsulting.com, or visit her web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.

By way of background, in 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews. Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.” And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster remains highly active in the field through her series of on-demand webcasts for equal opportunity professionals as well as through her mediation services, training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws. Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.”

Ms. Foster has a “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service. She is a member of the Discrimination Law and Human Rights Law Committees of the International Bar Association. Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.

Study Finds Negative Gender-Based Disparity in Pay and Jobs is Reinforced Through Workforce Investment Act Training Programs

Wednesday, July 3rd, 2013

In its June 27, 2013 study titled, “Workplace Investment System Reinforces Gender Segregation and the Gender Wage Gap,” the Institute for Women’s Policy Research found Workforce Investment Act (WIA)-funded training demonstrates “stark gender segregation in the jobs and careers for which women and men receive training.”  For example, over 47 percent of female WIA customers received training in the sales, clerical, and service (i.e. personal care aide) fields as compared to 14.6 percent of male WIA customers.  On the other hand, less than six percent of women received training in the fields of installation, repair, production, transportation, material moving, fishing, forestry, construction, and extraction skills as compared to more than 52 percent of men who received such WIA-funded training.

The Institute for Women’s Policy Research further found, based on economic data maintained by the U.S. Labor Department, “Women’s quarterly earnings are substantially lower than men’s once they exit federal workforce training services.”  The Institute asserts this wage gap between men and women differed by 74.6 percent in 2011.

Based on the significant disparities between men and women in training and wages, the Institute maintains “[m]ore proactive career counseling may encourage women’s entry into higher-earning, high-demand fields, and significantly enhance their chances of reaching economic self-sufficiency.”

To read this study in its entirety, go to http://www.iwpr.org/publications.

So, if you work in the area of equal opportunity, job referrals, job training, or the like at an American Job Network center or Job Corps center, you must be aware of whether these gender-based disparities in your WIA-funded programs and activities are occurring and, if so, you are required to take steps to offer training and other programs in a nondiscriminatory manner to men and women.  This means that women should not automatically be channeled to lower paying, or “traditional” fields; rather, each customer’s educational level, skills, and abilities must be reviewed and, regardless of gender, the customer should be afforded the fullest opportunity to pursue training for fields considered “non-traditional” for his or her gender.  The focus should be on whether the customer meets the “essential eligibility requirements” for a particular training program, not on the customer’s gender.

About Seena Foster

Seena Foster, award-winning civil rights author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers Webinars, full-day and half-day in-person training sessions, assistance developing procedures, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally-funded programs and activities. Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors. You may contact her through www.titleviconsulting.com.

Limited English Proficient (LEP) Persons: Some of the Basics in Federally Funded Programs and Activities

Tuesday, November 15th, 2011

Title VI of the Civil Rights Act of 1964 (Title VI) mandates nondiscrimination and equal opportunity on the basis of national origin in all federally funded programs and activities. A few examples of “national origin” include, but are not limited to, Mexican, Ukranian, Turkish, Filipino, Arab, Greek, American Indian, Cuban, Vietnamese, Kurdistan, Armenian, and Roma (gypsies).

The U.S. Department of Justice explains that denial of access by Limited English Proficient (LEP) persons generally constitutes national origin-based discrimination:

Discrimination on the basis of national origin can occur if a recipient does not provide appropriate language assistance to LEP individuals because these individuals, whose language is usually tied to their national origin, will not have access to the same benefits, services, information, or rights that the recipient provides to everyone else.

For further discussion of “basis”, see prior paper titled, “The ‘Basis’ of a Discrimination Complaint: What It Is and Why It’s Important.”

What does this mean for the Equal Opportunity professional? It means that, if you operate or administer federally funded programs and activities, you must provide meaningful access to persons who are LEP, also known in the educational community as English Language Learners (ELL).

For purposes of this paper, we’ll assume that you are the Equal Opportunity (EO) professional for an agency or organization offering programs and activities funded through Title I of the Workforce Investment Act (WIA), such as a One Stop Career Center or Job Corps Center. National origin-based discrimination is prohibited under WIA as well as Title VI.

Some background

The U.S. Department of Labor’s Civil Rights Center set forth its policy for providing meaningful access by LEP persons as supporting the following purpose:

To promote the economic well-being of workers and their families, help them share in the American dream through rising wages, pensions, health benefits and expanded economic opportunities, and foster safe and healthful workplaces that are free from discrimination, the United States Department of Labor (DOL) is committed to advancing the goals . . . (of improving access) by LEP individuals, who are often the most disenfranchised workers in the United States . . ..

The idea is LEP persons cannot be denied access to federally funded services, aid, benefits, or training simply because of their limited ability to speak, understand, read, or write English. Since your programs and activities are funded by a public that is comprised of people of all races, colors, national origins, religions, ages, genders, and the like, you cannot deny meaningful access to the programs and activities on the basis of any of these class characteristics.

How is it done?

How is access to LEP persons provided? Primarily through bilingual staff and/or interpretation and translation services.

Bilingual staff as well as interpretation and translation services can be a costly business and, with budget and staff shortages in a difficult economy, it may seem an impossible task. It important to know, however, that you must provide access to any LEP person at no charge to that person as a matter of federal law. And, there is no waiver or exemption based on cost or other asserted hardship.

Each federal funding agency will have regulations and guidance regarding a recipient’s obligations to provide LEP persons access to programs and activities. One example is the WIA-related regulations issued by the U.S. Department of Labor at 29 C.F.R. § 37.35:

What are a recipient’s responsibilities to provide services and information in languages other than English?

(a) A significant number or proportion of the population eligible to be served, or likely to be directly affected, by a WIA Title I-financially assisted program or activity may need services or information in a language other than English in order to be effectively informed about, or able to participate in, the program or activity. Where such a significant number or proportion exists, a recipient must take the following actions:

(1) Consider:

(i) The scope of the program or activity, and

(ii) The size and concentration of the population that needs services or information in a language other than English; and

(2) Based on those considerations, take reasonable steps to provide services and information in appropriate languages. This information must include the initial and continuing notice required under §§ 37.29 and 37.30, and all information that is communicated under § 37.34.

(b) In circumstances other than those described in paragraph (a) of this section, a recipient should nonetheless make reasonable efforts to meet the particularized language needs of limited-English-speaking individuals who seek services or information from the recipient.

29 C.F.R. § 37.35. For an idea of requirements at 29 C.F.R. §§ 37.29, 37.30 and 37.34, see prior paper titled, “’EO is The Law’ and ‘EEO is The Law’: Understanding Some of the Distinctions.”

Developing a strategy

As the EO professional for your organization, it is imperative that you develop a strategy for addressing the LEP needs of your beneficiaries and potential beneficiaries. For an excellent checklist to use in developing LEP policies and procedures in WIA-related programs and activities (such as unemployment insurance, Job Corps, employment referral services, on-the-job training), go to the National Association of State Workforce Agencies’ website at www.naswa.org.

√ Factors to consider

The U.S. Department of Justice has developed four factors to consider in developing your LEP strategy. First, research the number or proportion of LEP persons in your eligible service population. Second, determine the frequency with which LEP individuals come into contact with a program or activity at your location. Third, assess the importance of the benefits, service, aid, training, or information to the LEP person, including consequences stemming from the lack of adequate interpretation or translation services. Finally, look at resources available to you and the costs of providing various types of language services.

√ You must have procedures in place for handling LEP needs

If you operate federally funded programs and activities, you must develop sound policies and procedures for communicating with LEP persons. For further discussion of the importance of policies and procedures, see prior paper titled, “The Importance of ‘The Script’.” Many federal agencies provide guidance regarding how to structure these policies and procedures. For example, the U.S. Department of Labor states that any sound plan will include the following:

● Determining your language services needs;
● Training staff so they know how to access and utilize resources;
● Implementing and enforcing quality control measures (including monitoring) to ensure accurate and effective communication with LEP persons; and
● Conducting outreach to ensure that all community members, regardless of national origin or language, have access to your programs and activities.

And, once developed, you’ll want to revisit these policies and procedures to update them as demographics, language resources, and other factors change.

√ Research the demographics

Start with researching the demographics of the population of your beneficiaries and potential beneficiaries. Look at data from the United States Census (including American Factfinder, which is the Bureau’s interactive demographic mapping service), data collected by federal agencies for your area (including demographic data found at www.lep.gov), data collected by your EO leadership and state agencies, data available through community-based and faith-based organizations in your community, and your own common sense, experiences, and observations. You’ll find that the U.S. Department of Education website contains data pertaining to languages spoken in your local public school systems. Additionally, the U.S. Department of Labor’s Employment and Training Administration maintains language data by state or workforce area at www.doleta.gov. From this research, you may find that certain language groups will begin to take shape for your service area.

Compare what you find from this research with the composition of folks coming through your doors. Is the percentage of LEP persons coming to you for services, aid, benefits, or training less than what your research suggests that it should be?

For example, let’s assume that the United States Census data shows that 30 percent of your state’s population are LEP Spanish-speaking individuals. You look at data for your location and find that Spanish-speaking LEP persons constitute 7 percent of the folks you serve. Why?

There are a couple of possibilities. First, it may be that you need to conduct additional outreach for this population with materials written in Spanish and broadcast communications in Spanish for those who may have difficulty reading their native language. You could check with organizations and advocacy groups and ask for their assistance, both in terms of translating materials and disseminating the information.

In the alternative, it may be that your location is not in the vicinity of these LEP persons; rather, the majority of their community is located elsewhere in your state. Knowing the demographics of your service area is a critical step in developing an effective LEP plan.

√ Target the documents in need of translation

Turning to your brochures, applications, enrollment forms, notices, orientation documents, and other written material, translation of these documents may be prioritized based on their importance.

For example, anyone offering federally funded programs and activities will find a “Know Your Rights” brochure, developed by the U.S. Department of Justice, which is available in multiple languages at www.lep.gov. And, each federal agency will offer certain critical documents that you may use for the programs and activities they fund. For example, the Social Security Administration has certain critical forms available to LEP persons in a number of languages at www.ssa.gov/multilanguage.

Moreover, the U.S. Department of Justice has a checklist for prioritizing documents for translation, which provides the following guidance:
Agencies should prioritize translating vital documents. A document will be considered vital if it contains information that is critical for accessing the agency’s program or activities, or is required by law. Vital documents include, but are not limited to:
● Documents that must be provided by law;
● Complaint, consent, release or waiver forms;
● Claim or application forms;
● Conditions of settlement or resolution agreements;
● Letters or notices pertaining to the reduction, denial, or termination of services or programs or that require a response from the LEP person;
● Time-sensitive notice, including notice of hearing, upcoming grand jury or deposition appearance, or other investigation or litigation-related deadlines;
● Form or written material related to individual rights;
● Notice of rights, requirements, or responsibilities; and,
● Notices regarding the availability of free language assistance services for LEP individuals.

For less critical documents, which do not substantively affect the rights of beneficiaries or potential beneficiaries, you may provide translation or interpretation on an as-needed basis.

√ Make informed decisions

Once you understand the demographics of your beneficiaries and potential beneficiaries, you can make informed decisions regarding the interpreter and translation services you need. For example, if you have a significant population of French-speaking LEP persons as beneficiaries or potential beneficiaries, it may be cost-effective to hire bilingual staff. If this is an option for you, make sure you provide access to interpreter/translator training courses since your goal is to provide “effective and accurate” communication.

On the other hand, if you have a small LEP population in your area, it may be more cost-effective to utilize contract translation and interpretation services on an as-needed basis. Professional interpreters and translators are highly trained and constitute a pool of qualified individuals to turn to when needed.

Keep in mind that you must provide access to LEP persons free of charge, regardless whether LEP persons of a particular language comprise a high percentage of your beneficiaries or potential beneficiaries, or they are few (or one) in number.

√ Focus on the front lines

Too often, folks on the front lines of your location are not sufficiently trained and do not have adequate resources to greet LEP beneficiaries or potential beneficiaries from the moment they come through your door. Make sure these key personnel have materials in appropriate languages as well as “I speak” cards or the like (understanding that written methods of communication will not work for folks who are illiterate in their native language).

You may find “I speak” cards available through your federal funding agency or from the EO leadership of your state or territory. And, “I speak” cards are available through the United States Census Bureau.

Although cost-effective measures may force you to focus your interpretation and translation efforts initially on larger LEP populations, it bears repeating that you are obligated, by law, to serve any LEP individual who comes through your door. For this reason, it is good to have “I speak” cards and procedures in place for properly directing LEP persons, such as through use of language phone lines, bilingual staff, contracts for language services, or area faith-based and community-based organizations and advocacy groups.

Avenues of resources

Despite the challenges of staff and budget limitations, there are multiple avenues of translation and interpretation resources available to you. The keys are leveraging low or no cost services through research and relationship-building.

√ The U.S. Department of Justice

Take a look at the guidance and resources available at www.lep.gov. This is a U.S. Department of Justice-sponsored website that serves as a central location for numerous federal, state, and local LEP-related resources, best practices, and guidance.

√ Your federal funding agency

Every federal agency has a civil rights office. Based on the federal agency that funds the programs and activities you offer, go to that agency’s civil rights office and see what resources and guidance they have to offer you. If you receive funding from multiple federal agencies, check with each of their civil rights offices separately. By taking advantage of these resources, you will not need to “reinvent the wheel” so to speak.

For example, the U.S. Department of Labor’s Civil Rights Center (CRC) offers its required “Equal Opportunity is The Law” notice in multiple languages. Therefore, if you operate programs and activities funded through the WIA, you can pick up the required notice in certain languages from the CRC’s website. Check availability of LEP resources and guidance from a federal agency’s civil rights office to save time and money.

√ Your state or territory EO leadership

Make contact with the EO leadership of your state or territory. Find out what resources have been generated for LEP persons at that level. Often, the EO leadership will have certain commonly used forms, information, and notices available in other languages spoken in the state or territory.

And, for interpreter services, your EO leadership may be able to direct you to a list of approved contractors providing interpreter and translation services, or they may have a phone number dedicated to providing language services. Often, they will have “I speak” cards that you may use at your reception, enrollment, admission, or intake area so that your staff will be able to quickly determine the language spoken by the LEP person.

Also, every state and territory operating WIA-related programs and activities will have a document called the “Methods of Administration” (MOA). This document is signed by the Governor and it sets forth the means by which the Governor will ensure compliance with federal civil rights laws. Included in the MOA will be a discussion of your state’s or territory’s available LEP-related resources as well as procedures approved by your Governor to ensure that WIA-related benefits, aid, training, and services are accessible to LEP persons.

√ Partnerships with organizations and advocacy groups

Another avenue of providing LEP services at low or no cost to you is through developing and leveraging partnerships with community-based and faith-based organizations as well as advocacy groups. Often these entities have a direct interest and stake in helping you deliver benefits, services, aid, and training to their LEP constituents or members. They also serve as excellent avenues for outreach.

√ Partnerships with the business community

Taking time to research businesses in your area also can yield results. These businesses may be comprised of bilingual or multilingual employees who can volunteer time to help LEP persons in the community. Keep in mind that volunteers must understand applicable ethical and confidentiality obligations and must be trained to provide effective and accurate translations and/or interpretation services.

√ Partnerships with educational institutions

An excellent source of part-time (or even volunteer) translation and/or interpretation services is through local educational institutions. Because the demographics of your beneficiary population may be similar to demographics of the educational institutions in your area, you may find some interpretation and translation resources through networking with these educational institutions. Seek out relationships with undergraduate, graduate, and law students as well as staff at university language departments. Keep in mind that these folks must have training enabling them to provide accurate and effective communication and they must understand their obligations with regard to ethics and confidentiality. You’ll also want to make sure that they are familiar with any specialized terminology applicable to your program or activity.

√ The U.S. Equal Employment Opportunities Commission

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of national origin in your employment practices. And, Appendix C of the EEOC’s LEP Plan contains a list of community-based organizations across the country that provide language interpretation and translation services. These same organizations may prove invaluable to you as well.

And, while we are on the subject, let’s take a look at your employment practices with regard to LEP persons. The phrase “employment practices” includes recruitment, hiring, promotion, transfer, wages and benefits, work assignments, leave, training and apprenticeship programs, discipline, layoff, and termination. The EEOC states that it is illegal:

. . . to use an employment policy or practice that applies to everyone, regardless of national origin, if it has a negative impact on people of a certain national origin and is not job-related or necessary to the operation of the business.

Moreover, the EEOC mandates that an employment decision (such as hiring, termination, selection, or the like) cannot be based on an employee’s “foreign accent” unless the accent “seriously interferes with the employee’s job performance.” Here, the EEOC offers an example where it may be appropriate for the LEP-person not to be hired for a sales position requiring interaction with English-speaking customers, but may be hired to work in an office position, stockroom position, or the like, where such interaction is not required.

Finally, the EEOC also addresses the use of “English-only rules” in the workplace. Notably, this type of rule is “only allowed if it is needed to ensure the safe or efficient operation of the employer’s business and is put in place for nondiscriminatory reasons.” Some examples provided by the EEOC in support of an English-only rule in the workplace includes communication with customers, coworkers, or supervisors who only speak English, emergency situations where workers must speak a common language to promote safety, and cooperative work assignments in which workers must speak a common language to promote efficiency.

Seena Foster is an attorney and author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination.” Her book was judged by a panel of industry experts as an award-winning Finalist in the Business Reference category of the 2011 USA Best Books competition, sponsored by USA Book News. She is also a Partner with Title VI Consulting in Alexandria, VA. You may visit her website at www.titleviconsulting.com.