The Department of Housing & Urban Development (HUD) recently entered into a Conciliation/Voluntary Compliance Agreement with an owner and management company in Sacramento, CA resolving allegations that they violated the Fair Housing Act (FHA) and Title VI of the Civil Rights Act of 1964. The respondents allegedly failed to provide language access services to Vietnamese residents and retaliated against a property employee for advocating for residents with limited English proficiency to receive oral interpretation services and translated vital documents.
The FHA prohibits housing providers from discriminating against persons based on their national origin. This includes aiding others in the exercise or enjoyment of their fair housing rights. Additionally, Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of national origin by recipients of federal financial assistance and requires such recipients to take reasonable steps to ensure meaningful access for limited English proficient (LEP) persons.
The case came to HUD’s attention when an agent at the Apartment Community, which receives HUD funding, filed a complaint alleging that the owners and managers of the property failed to provide language access services to the complex’s Vietnamese residents and retaliated against an employee because she advocated for the housing providers to provide language services to LEP residents.
Under the terms of the settlement, the management agent agreed to the following:
- Pay $10,000 to the employee who filed the complaint;
- Will not give a negative employment reference for the employee if potential future employers contact the management company;
- Provide $20,075 in compensation to residents of the property, with each household receiving $275 as either a check or rent credit;
- Send a notification letter to each household – in their primary language – notifying them of the agreement, including that the management company will provide LEP applicants with free oral interpretation services and translated documents when required by law; and
- Ensure that all employees who interact with residents or applicants attend training on Title VI language access requirements.
This case is a reminder to all owners and property managers of the requirement to have LEP policies at all properties that receive federal assistance (primarily HUD and properties assisted by the Rural Housing Service).
Owners and managers of non-federally assisted properties should also remember that the Fair Housing Act, which applies to nearly all housing owners and operators, protects individuals based on national origin, which makes it illegal to discriminate because of a person’s birthplace, ancestry, culture, or language.
What is Limited English Proficient (LEP)?
- The Census Bureau defines Limited English Proficiency as speaking English “less than very well.”
- The entire LEP population grew by 52% in a ten-year period and is growing fastest in states with the greatest immigrant growth (California, Texas, and Florida).
HUD’s Title VI LEP Guidance
Properties with HUD assistance are required to conduct a “Four Factor Analysis” relating to LEP persons:
- Number or proportion of LEP individuals served or encountered in the eligible service area;
- Generally, the greater the number or proportion of LEP persons from a certain language group within the eligible service area, the more likely language services are needed.
- What is the “Eligible Service Area”?
- The area from which the program would expect to draw its applicants and beneficiaries (i.e., the market area).
- Consider geographic and programmatic terms. Even if the overall number of LEP persons is small, the number of contacts the recipient has with LEP persons from the language group may be high.
- Only consider LEP individuals and not all persons from non-English speaking national origins.
- The frequency with which LEP persons come into contact with the program;
- The more frequent the contact with a particular language group, the more likely that enhanced language services in the language are needed.
- The nature and importance of the program, activity, or service provided by the program; and
- The resources available to the grantee.
Determining if there is Meaningful Access
What is “Meaningful Access?”
- Ability to access programs and participate in services, activities, and other benefits.
Where should the analysis begin?
- Here are some HUD-approved “safe-harbors:”
- If more than 5% of the eligible population or beneficiaries and more than 50 people are LEP deficient, vital documents should be translated to that language.
- If more than 5% of the eligible population or beneficiaries but less than 50 people are LEP deficient, there should be a translated written notice of their right to receive free oral interpretation of documents.
- If less than 5% of the eligible population or beneficiaries and less than 1,000 people are LEP deficient, no written translation is required.
Minimum Essential Elements of LEP Services
Recipients of federal assistance, no matter how small, must provide essential elements of LEP services, including:
- Assess languages used among the eligible population in the recipient’s service area;
- Make “I Speak” cards readily available in the languages that have a significant population;
- Establish access to a translation line such as LanguageLine; and
- Make its website accessible to LEP persons.
- Recipients of federal funding need to be making efforts to provide access to people with limited English skills;
- The analysis of what services a recipient needs to provide is a fact specific balancing test; and
- If someone is having difficulty accessing federally funded programs due to a language barrier, they can file a complaint and HUD may investigate.
HUD LEP Page: http://portal.hud.gov/hudportal/HUD/pro gram_offices/fair_housing_equal_opp/pr omotingfh/lep
Inter-Agency LEP Page: www.lep.gov