Follow LEP Requirements to Avoid Discrimination Claims

Conduct a four-factor analysis to determine the translation needs at your site.

Individuals who don’t speak English as their primary language and who have a limited ability to read, speak, write, or understand English can be limited English proficient, or “LEP.” These individuals are entitled to language assistance with respect to HUD-subsidized housing.

The Fair Housing Act 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 LEP individuals. Meaningful access may include interpreter services and/or written materials translated into other languages [HUD Handbook 4350.3, par. 2-9(C)(1)].

Site Pays Price for Not Translating Vital Docs

HUD recently announced a settlement with an owner and management company based in Sacramento, Calif., resolving allegations that they violated the Fair Housing Act and Title VI of the Civil Rights Act of 1964. In particular, the owner and management company allegedly failed to provide language access services to Vietnamese residents and retaliated against a staff member for advocating for residents with limited English proficiency to receive oral interpretation services and translated vital documents. The case came to HUD’s attention when the staff member from the site, which receives HUD funding, filed a complaint.

“Everyone who applies for or lives in HUD-assisted housing should be able to access critical information about that housing, such as the application process, the terms of their lease, and the apartment building’s rules,” said HUD’s Acting Assistant Secretary Jeanine Worden in a statement. “Language must not be a barrier to accessing affordable housing. Under fair housing laws, affordable housing providers have an obligation to make important information available to all applicants and tenants, including people whose primary language is not English.”

Under the terms of the settlement, the owner agreed to pay $10,000 to the employee who filed the complaint. The owner will also provide $20,075 in compensation to residents of the property, with each household receiving $275 as either a check or as a rent credit. In addition, a notification letter will be sent to each household in their primary language notifying them of the agreement, including that the owner will provide LEP applicants with free oral interpretation services and translated documents when required by law [HUD v. FPI Management, FHEO case: 09-20-2040-8].

Takeaways

To avoid claims of national origin discrimination due to lack of LEP services, HUD’s LEP guidance says to start with an individualized assessment of your LEP population. With this assessment, you can create a Language Assistance Plan (LAP) that meets your site’s needs. An individualized assessment balances the following four factors:

• The number or proportion of LEP persons eligible to be served or likely to be encountered by the site;
• The frequency with which LEP individuals come in contact with the program;
• The nature and importance of the program, activity, or service provided by the program to people’s lives; and
• The resources available to the recipient and costs.

HUD’s intent is for each site to find an individual balance that ensures meaningful access by LEP persons to housing while not imposing undue burdens, financial or otherwise.

Identify Vital Documents

As part of the settlement in the case above, the owner was required to conduct a four-factor analysis to identify the languages into which vital documents must be translated. The owners were required to provide HUD with evidence that all vital documents have been translated into each of the languages identified as requiring written translation.

A vital document is any document that’s critical for ensuring meaningful access to the recipients’ major activities and programs by beneficiaries generally and LEP persons specifically. For example, applications for recreational programs in public housing wouldn’t generally be considered vital documents, whereas applications for housing would be considered vital.

A lease would be considered a vital document. It’s the primary agreement between an owner and a resident and is the primary mechanism for enforcing the tenancy. The second most important document is arguably the rental application. It’s the mandatory first step for establishing a relationship between owners and residents. And it’s the first step in determining the eligibility of applicants for subsidized housing. And depending on your site and the conclusions you may have reached in your four-part analysis, you may find that other documents would be considered to be vital as well, such as forms, fact sheets, and brochures.

Where appropriate, owners are encouraged to create a plan for consistently determining, over time and across its various activities, what documents are “vital” to the meaningful access of the LEP populations they serve. You can visit HUD’s website at http://www.hud.gov/program_offices/fair_housing_equal_opp/17lep for documents in various languages created by HUD program offices.

Safe Harbors

To ensure that there are no compliance issues with regard to LEP obligations, HUD has created “safe harbors” with respect to the needed translation of vital written materials. If an owner or manager conducts the four-factor analysis, determines that translated documents are needed by LEP applicants, adopts an LAP that specifies the translation of vital materials, and makes the necessary translations, then the owner has provided strong evidence that it has made reasonable efforts to provide written language assistance.

Be sure to include in your LAP what will be done to assist LEP contacts. Include a brief statement outlining what you and/or your organization will do when an LEP person makes contact. For example, you could keep a log, contact someone on your list of staff resources whom you’ve identified as having a foreign language skill, or find an interpreter.

According to HUD, if the size of your community’s language group is:

• 1,000 or more in the eligible population in the market area or more than 5 percent of the eligible population and more than 50 in number, then HUD recommends you provide translated vital documents.
• More than 5 percent of the eligible population and 50 or fewer in number, HUD recommends providing a translated written notice of right to receive free oral interpretation of documents.
• 5 percent or less of the eligible population and fewer than 1,000 in number, HUD states that no written translation is required.