Guide to Recipients
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 (1) 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, and (2) DOJ memorandum issued February 17, 2011, federal governments renewed commitment to language access obligations under executive order 13161 which reaffirms the original mandate and require federal agencies to take specific steps for full compliance.
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
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
V. 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. NSF will ensure that
recipients 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 Diversity and Inclusion.