Alabama has recently been much in the national spotlight, with a highly contested election for U.S. Senator. While much of the nation’s attention was riveted on the back and forth among candidates, political parties, and partisans, Alabama also witnessed other federal activity that did not receive nearly the attention that the red hot Senate race did.
In late October, the Office for Civil Rights (OCR) of the U.S. Department of Health and Human Services (HHS) announced a settlement of Civil Rights Act of 1964 national origin discrimination allegations against the Alabama Department of Human Resources (ADHR).
A settlement agreement between HHS and ADHR resolved the discrimination allegations. The agreement specifies the applicable, longstanding legal standard for Title VI’s language assistance requirements “Meaningful Access” for limited English proficient people to federally subsidized programs, services, and activities.
As HHS explained in its press release:
“The Agreement resolves a finding that ADHR administered its Child Welfare Programs (CWP) in a manner that had the effect of delaying or denying access to its programs and services on the basis of nation origin, in violation of Title VI of the Civil Rights Act of 1964 (Title VI). As a recipient of Federal financial assistance from HHS, ADHR is subject to Title VI, which prohibits discrimination on the basis of race, color, or national origin. Under Title VI, recipients must take reasonable steps to provide meaningful access to their programs for individuals with limited English proficiency (LEP).”
The HHS investigation moved forward after a referral from the U.S. Justice Department. The case began with a Limited English Proficient (LEP) father, who is a native of Guatemala, engaged in a parental rights case. The father speaks Akateco, an indigenous, Mayan language spoken by the Akatek people of Guatemala. However, according to HHS, Alabama did not provide him with appropriate language assistance required by Title VI of the Civil Rights Act of 1964. The ADHR receives federal funding and is therefore required to comply with the language assistance requirements and national origin discrimination prohibitions of Title VI.
According to HHS:
“The Akateco-speaking father was attempting reunification with his daughter who had been placed in foster care by ADHR after the death of his wife. Under Title VI, ADHR is required to take reasonable steps to provide meaningful access to its programs by persons with LEP and is otherwise prohibited from discriminating against persons on the basis of their national origin.
OCR determined that ADHR was required by Federal law and its own policies to provide services to help the father attempt reunification with his daughter. OCR’s investigation found that the father’s LEP was a significant factor in ADHR’s failure to provide timely language assistance and other services essential for reunification. Additionally, OCR’s investigation found that ADHR consistently failed to take reasonable steps to ensure meaningful access to its programs by Latino persons with LEP. Thus, OCR determined that ADHR administered its programs in a manner that had the effect of delaying or denying access to its programs and services on the basis of national origin in violation of Title VI.”
The settlement agreement contains several important provisions concerning staff training, language assistance standards, and personnel policies.
Language Assistance Standards. ADHR shall take reasonable steps to ensure that Child Welfare Program staff interpreters and translators, bilingual/multilingual staff, interpreters from community organizations, and contractors providing language assistance services, including interpretation and translation, are capable of competently performing their duties. Competency of language assistance service providers may be established by a variety of means including self-attestation of the interpreter after having reviewed the interpreter competency standards listed below. Standards for interpreter competency shall include the following:
1. Communicate in both English and the LEP individual’s primary language accurately and effectively
2. Interpret to and from English and the LEP individual’s primary language accurately and impartially
3. Possess appropriate knowledge of specialized terms and concepts used frequently in the provision of the CWP’s services and programs
4. Understand and follow the obligation to maintain confidentiality
5. Understand the roles of interpreters and the ethics associated with being an interpreter
6. For those providing written translations, have the ability to translate written documents effectively
The settlement agreement further mandates the hiring of a Language Access Coordinator and training of staff. The required training must contain the following elements:
a) The importance of effective communication with LEP individuals
b) The policy and procedures outlined in this Agreement
c) The method used to assess an individual’s need for interpreter or other language assistance services
d) The use of interpreters when CWP (Child Welfare Program of the ADHR Family Services Division) staff members receive incoming calls from or make outgoing calls to LEP individuals
e) The use of interpreters by contractors to whom participants are referred for services required by the reunification plan
f) The impact of ethnic and cultural differences on effective communication and the need for sensitivity to diversity issues
g) The effective method of using an in-person and telephone interpreter
h) Applicable record-keeping procedures
Finally, of particular note, the agreement specifies performance review and disciplinary requirements for ADHR employees’ compliance with Title VI of the Civil Rights Act of 1964:
“Annual performance reviews of the Language Assistance Coordinator, County Language Assistance Coordinators, and County Directors shall include compliance with language assistance requirements. District Administrative Specialists shall consider Title VI compliance as part of their evaluation of County Directors. Progressive discipline procedures shall apply to all DHR staff who do not comply with the requirements of Title VI and the terms of this Agreement.”
A vigorously contested U.S. Senate election, and of course the annual Alabama v. Auburn college football rivalry, captured a lot of Alabama attention in the fall of 2017. While most eyes were focused elsewhere, a little known agreement was reached to protect the civil rights of LEP people and ensure that a non-English speaking parent could pursue his parental rights case in his own language.
**Read some of Bruce Adelson’s other blog posts to learn about more developments in language access law, and be sure to contact us if you’re interested in a consultation about your own organization’s compliance with federal language access law.
© Bruce L. Adelson, special for Bromberg. 2017 All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney.
Mr. Adelson teaches cultural and civil rights awareness at Georgetown University School of Medicine in Washington, D.C.