April 21, 2011

Celebrating Language Access, and Giving Teeth to the DC Language Access Act

April is Language Access Month, which marks the 7th anniversary since the passing of the DC Language Access Act, which provides meaningful access to DC government services for limited and non-English proficient individuals through oral interpretation and translation of vital government documents. In celebration of Language Access Month, we invite you to join Bread for the City, Many Languages One Voice, and the DC Language Access Coalition on April 27 at 6:30 PM at the All Souls Church, 2835 16th Street NW. An excerpt of the film "Communities in Translation" will be shown for the first time in public. For more details and to RSVP, please contact info@dclanguageaccess.org.

There’s certainly lots to celebrate during Language Access Month – both the landmark act itself and the recent success of a Language Access Act complaint against the DC Department of Human Services filed by my Bread for the City colleague Stacy Braverman. (See her compelling report on the case in this recent blog post.)

However, we also recognize that there are larger systemic problems with the legislation and its oversight. Currently, the only way to enforce the Act is to file a complaint through the Office of Human Rights (OHR). At OHR’s recent performance oversight hearing, I gave testimony that called for amending the Act to allow individuals to sue agencies in a DC court and provide a right to appeal an OHR decision.

As my testimony below lays out, in recent decisions regarding oral interpretation, OHR is not effectively fulfilling its role to oversee and ensure compliance with the Language Access Act. If it is not enforceable, the DC Language Access Act is just a law on the books, with no teeth. In order to ensure that the Act is enforced, individuals must have a private right of action to sue agencies in court. In addition, if individuals choose to file complaints through OHR, there must be a way to challenge unfavorable OHR decisions. Though we received a successful OHR decision recently, other complainants have not. As I outlined in my testimony, even though we believe OHR has misapplied the law in some cases, there is no mechanism to appeal a decision by OHR.

Under DC law, people who have suffered other types of discrimination have several options to enforce their rights. If a DC agency treats me unfairly because of my race, for instance, I can choose to file a complaint with the Office of Human Rights or I can sue the agency directly. If I choose to file a complaint with OHR and I disagree with its decision, I have a right to appeal that decision.

To bring the process in line with what governs OHR discrimination complaints, Bread for the City is working with our fellow members of the DC Language Access Coalition to propose an amendment to the DC Language Access Act. Our proposed amendment would give teeth to the Act, by ensuring that language discrimination is treated the same way as other forms of discrimination.

For more information, check out my testimony:

Testimony of Allison Miles-Lee
Staff Attorney, Bread for the City
D.C. Council Committee on Aging and Community Affairs
Public Performance Oversight Hearing on the Office of Human Rights
March 3, 2011

Good morning. My name is Allison Miles-Lee. I am a staff attorney at Bread for the City, which is a non-profit organization in D.C. and a member of the D.C. Language Access Coalition. I’d like to share some concerns we have about the Office of Human Rights’ (OHR) oversight and enforcement of the Language Access Act (“Act”) through its complaint process.

Under the Act, the OHR complaint process is the only way to hold agencies accountable for violations of the Act. Specifically, the Language Access Director of OHR is required to “track, monitor, and investigate public complaints regarding language access violations at covered entities, and where necessary, issue written findings of noncompliance to the covered entities regarding failures to provide language access.” D.C. Code § 2-1935(b)(2) (2011). Currently, the Language Access Act does not provide a private right of action that would give individuals an alternative to filing a complaint with OHR, nor does the Act provide an explicit right to appeal an unfavorable OHR decision.

In recent OHR determinations regarding oral interpretation, OHR is essentially rewriting the Act by its misapplication of the Act. In passing the Language Access Act, the Council clearly mandated that agencies provide oral interpretation in all languages needed by their customers. In contrast, the Act does not require agencies to provide written translation in all languages. The Act provides a framework for each agency to determine the languages for which it is required to provide written translation. Again, with respect to oral interpretation, it does not matter whether the individual speaks Spanish or Swahili, everyone must receive oral interpretation. There are no exceptions.

In coming to its determinations, however, OHR appears to apply other standards not provided for in the Language Access Act, such as the agency’s reasonableness and provision of partial services. As a result, OHR is finding that agencies are in compliance when we believe they have actually violated the law. Complainants then have no other recourse to challenge the agency or encourage it to come into compliance.

While the Language Access Act makes it clear that oral interpretation must be provided in all languages, it does not specify which type of oral interpretation service is required. For instance, agencies could rely on bilingual employees, paid live interpreters, or a telephone interpretation line. On an annual basis, agencies are required to make a determination of the type of oral language services they will provide, based on a four-factor analysis. This analysis includes: 1) The number or proportion of limited or no-English proficient (LEP/NEP) persons of the population served or encountered, or likely to be served or encountered, by the agency (agencies should already be doing this analysis to determine which languages require written translation); 2) The frequency with which LEP/NEP individuals come into contact with the agency; 3) The importance of the service provided by the agency; and 4) the resources available to the agency. The Act offers further guidance for factor 1, offering suggestions of data sources that agencies can consult in making their determinations.

The four-factor analysis is a requirement imposed on agencies as they decide the types of oral interpretation they will provide. For example, the Department of Human Services (DHS) might determine that it has a large population of Spanish speakers already frequently accessing its important services and that it is able to hire Spanish-speaking staff without difficulty. Accordingly, for Spanish oral interpretation, DHS may decide to staff all its service centers with bilingual staff who can provide Spanish oral interpretation to customers. For a language like Swahili, however, DHS may determine that it does not have a large number of people currently accessing services at the agency and does not anticipate having a large number in the future, after consulting data sources. So, for Swahili, DHS may decide that, at least for now, oral interpretation will be provided by a telephone interpretation line.

In several recent determinations, OHR appeared to mistakenly apply the four-factor analysis described above to determine whether an agency was required to provide any oral interpretation for a certain language or not, when this analysis should only be used when agencies determine the type of oral interpretation to provide.

In addition to mistakenly applying the four-factor analysis to determine whether agencies are, at the outset, required to provide oral interpretation in a certain language or not, OHR has applied standards not outlined in the Act, including a reasonableness standard and a capacity standard. In another case, OHR considered the fact that at least some people were given oral interpretation, though not all. With regard to oral interpretation, none of these lines of inquiry is relevant under the Act to determine if the agency is in compliance with the Act.

In two recent determinations, OHR acknowledged that the agency did not provide needed oral interpretation to the complainants. However in both cases, OHR went on to apply an additional reasonableness standard that is not outlined in the Act. Since OHR determined that the agency acted “reasonably,” it found that it did not violate the Act.

In another written determination, OHR did an analysis of whether an agency had the capacity to provide oral interpretation services before it determined whether the agency complied with the Act. Again, this standard is not outlined in the Act.

Finally, OHR found that another agency did not provide adequate oral interpretation. In fact, the agency itself admitted that it had used bad interpreters and a number of Mandarin-speaking individuals were denied access to the agency’s services as a result. Nonetheless, OHR found no violation since the agency showed that it made an effort to get better interpreters at subsequent events, and eventually “some of the participants were able to have meaningful participation in the process,” though not all.

As these recent examples show, OHR is not effectively fulfilling its role to oversee and ensure compliance with the Language Access Act through its written determinations. Based on how OHR is coming to its determinations, it is clear that OHR is applying standards that do not exist in the Act. The standards that OHR applies are changing the requirements of the Act, and there is currently no mechanism for review of OHR determinations under the Act. We urge the Council to amend the Act to provide a private right of action and right to appeal an unfavorable OHR determination.

The Language Access Act is an important piece of legislation that brings D.C. to the national forefront of language access. If it is not enforced, though, it is meaningless. Thank you.

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