A portion of the “Multilingual Resources Page” on the U.S. Citizenship and Immigration Services (USCIS) website as of February 14, 2019 (see snapshot from that date captured by the Internet Archive’s Wayback Machine). This is an example of a “key resources page,” one of the approaches WIP has seen federal agencies take in providing access to non-English language materials.
An informal review by the Web Integrity Project has found that federal agencies have taken a huge range of approaches to meeting the needs of website users who lack English fluency. Prompted by federal regulations and more than forty years of jurisprudence on the issue, agencies seeking to accommodate limited English proficiency (LEP) users, as they’re known under federal law, offer everything from virtually duplicative websites in non-English languages to brief notes referring users to translation services. In other cases, agencies offer no language accommodations at all.
Under a key executive order from 2000 that builds on the landmark Civil Rights Act of 1964, the federal government and recipients of federal funds have an obligation to make their services available to the populations they serve, regardless of what languages those individuals speak. That poses a challenge in a country where at least 350 different tongues are represented, and more than 60 million people speak a language other than English. While the vast majority of those speakers are also fluent in English, about 25.1 million people in the U.S. are classified as having “limited English proficiency.”
That obligation to “LEP individuals,” as the population is known formally, applies on the Web, too, but exactly what that means for government websites is poorly defined and, in many cases, not defined at all. This explainer is meant to provide some information about the limited regulations that do exist, the various approaches government agencies take in complying with those regulations, and what we’ve observed so far about how it all plays out in the real world. It will cover the following questions:
- What does “limited English proficiency” mean?
- What federal rules govern the provision of services for LEP individuals?
- How do regulations on resources for LEP individuals apply to websites specifically?
- What about agency-specific guidelines on providing online content for LEP individuals?
- What are the different approaches WIP has seen agencies take in providing access to LEP materials?
What does it mean for someone to have “limited English proficiency?”
LEP individuals are people with a “limited ability to read, speak, write, or understand English,” as defined by the Department of Justice (DOJ). As discussed in federal guidelines, this group may include “persons born in other countries, some children of immigrants born in the United States, and other non-English or limited English proficient persons born in the United States, including some Native Americans.”
Federal courts have recognized that those without English fluency may have trouble navigating government systems to obtain services to which they’re entitled. In some circumstances, the U.S. Supreme Court has held, government’s failure to accommodate this population may amount to de facto discrimination under the Civil Rights Act of 1964, which prohibits discrimination on the basis of national origin.
What federal rules govern the provision of services for LEP individuals?
In August of 2000, President Bill Clinton issued Executive Order 13166, informing federal agencies and recipients of federal dollars of their responsibilities toward people without English fluency. EO 13166 is still the primary directive laying out rules for this population.
EO 13166 and its accompanying policy guidance require agencies and groups that receive federal funding to provide all users with “meaningful access” to their services, meaning that “the programs and activities they normally provide in English are accessible to LEP persons.” That principle — meaningful access — is subject to broad interpretation, and has not been defined well at the federal level for most purposes. The EO instructs federal agencies to create their own rules for implementing the requirements, and the policy guidance provides general principles for putting the loosely defined “meaningful access” principle into practical action.
“The rules around this are not really that direct,” at the federal level, said Dennis Corkery, an attorney with the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, in a conversation with the Web Integrity Project. “There’s no general federal civil rights statute saying that the federal government needs to provide meaningful language access,” Corkery said, or defining what that might look like.
While some states and localities have very explicit requirements for providing language access in settings like public schools, including for digital resources, that’s not the case under federal law. Instead, there is an assumed guarantee of equal protection under the U.S. Constitution, which is ultimately the source from which EO 13166 draws its authority.
“But it’s a very murky area,” Corkery adds.
How do regulations on resources for LEP individuals apply to websites specifically?
According to the policy guidance document that accompanied EO 13166 upon its release in 2000, “written” communications are among the materials that agencies must make accessible to all people. While “written” documents could reasonably be interpreted to include digital communications, neither EO 13166 nor its accompanying policy guidance — written before the internet was such an essential means of communication — makes explicit reference to websites or other digital materials published by the federal government.
In 2011, Attorney General Eric Holder directly addressed digital communications for the first time in relation to “LEP individuals” when he issued a memo, entitled “Federal Government’s Renewed Commitment to Language Access Obligations Under Executive Order 13166.” The memo cited a 2010 report from the Government Accountability Office that found significant deficiencies in some federal agencies’ compliance with EO 13166 broadly, and was aimed in part at reiterating that “each agency should ensure that its … web-based services meet current language needs,” along with other agency communications.
Guidelines laid out by the Department of Justice offer a bit more clarity than either the Holder memo or the 2000 EO in understanding what materials, including online resources, must be translated. Providing meaningful access to services means, according to the DOJ, making available “vital documents,” those that are “critical or vital to ensuring meaningful access by beneficiaries generally and LEP persons specifically.” They don’t require those documents to be translated, however. “In some circumstances,” the guidelines note, organizations can meet their obligations by “making available oral assistance, or by commissioning written translations on reasonable request.”
According to Mara Youdelman, managing attorney with the National Health Law Program, ideally, all government materials found online would be translated. In practice, however, meeting the needs of LEP individuals currently means striking a balance between providing access to the most important resources and agency capacity.
Section 1557 of the Affordable Care Act (ACA) contains specific directives related to LEP individuals that try to find that balance on federal websites. While some frequently used materials may be translated directly, offices can supplement translated materials online by making translation services available. They do this through the use of “taglines,” short messages in a variety of languages, often at the bottom of particularly important documents or webpages, that direct users to oral language services and inform them of their rights to assistance.
“(A tagline) would say, ‘this information is important,’” and direct readers to an interpretation service, Youdelman says. “Rather than having to translate the entire document, you’ve at least given someone a heads-up that they can get access to an interpreter.”
HealthCare.gov, for example, the primary portal for the federal health insurance exchange established under the ACA, has taglines in 15 languages listed in the site’s footer, as mandated under the act.
Youdelman says this approach offers a balance that takes into account the time and expense of translation, especially with the variety of languages spoken in the U.S. If every document needed to be translated into multiple languages every time it was updated — which can be frequently for some kinds of records — the process could quickly become unwieldy. (The calculus changes at the local level, Youdelman notes. If a large percentage of clients at a given community health center speak Spanish, for example, it would make sense to translate key documents rather than providing an interpreter for each client.)
What about agency-specific guidelines on providing online content for LEP individuals?
As required under guidance documents accompanying EO 13166, agencies must draft their own rules on how to meet the needs of users. As an example, the policies created by the Department of Health and Human Services do make specific reference to websites. But like the other regulations — and this area of law and regulation in general — the rules lay out broad principles rather than specific mandates for translation, only requiring “publicly available online information …[to be] … accessible … in accordance with assessments of need and capacity.”
A portion of the IRS.gov homepage as of February 14, 2019 (see snapshot from that date captured by the Internet Archive’s Wayback Machine). This is an example of a website that has largely complete copies of the English-language site in other languages. Links to the non-English versions of the site are access through a dropdown in the header of webpages throughout the website domain.
What are the different approaches WIP has seen federal agencies take in providing access to LEP materials?
While WIP has not done a comprehensive review of how federal websites address the need for language accommodations, our experience with federal websites and preliminary research on the topic suggests that federal agencies use a wide variety of approaches to make non-English language content accessible from English language websites, ranging from full translation and taglines, to ad hoc translation using Google Translate.
In our early research, we have seen federal agencies use the following:
- A largely complete copy of the English-language site in another language
- A separate, self-contained, non-English language website that closely matches the structure and content of the English-language website. Typically, these sites will be in Spanish. A link to the non-English site may be found in the header of pages throughout the website domain, and vice versa.
- Example: The header of HealthCare.gov, the federal health insurance exchange website maintained by Centers for Medicare & Medicaid Services, features a prominent link to the Spanish version of the site, CuidadoDeSalud.gov. CuidadoDeSalud.gov appears to contain a similar amount and detail of content as HealthCare.gov.
- Multiple “mini”-sites containing some content from the English-language site
- Collections of non-English webpages that mimic some of the English-language website. Since not all pages are translated, pages in each “mini”-site may link to English-language webpages. A link to the non-English site may be found in the header or footer of pages throughout the English-language website, and vice versa.
- Example: The Internal Revenue Service website, irs.gov, includes a prominent dropdown “Language” menu in the header of webpages throughout its website. This menu links to “mini-sites” in Spanish, Chinese, Korean, Russian and Vietnamese. Each mini-site mirrors the structure of the English-language site, but not all of the content is translated and many links lead to content in English (especially for languages other than Spanish).
- Taglines directing users to translation or language assistance services
- Links, found in the header or footer of a website or listed on specific webpages with “important” content, that direct users to a statement about the availability of free translation or language assistance services provided by the agency. Each link leads to a version of the statement written in the same language as the link text.
- Example: The homepage footer of HHS.gov, the website of the U.S. Department of Health & Human Services (HHS), includes taglines in 15 non-English languages, all linking to a statement (in the chosen language) that explains “language assistance services, free of charge, are available,” and provides a 1-800 number to call for these services.
- Key resources pages
- An agency homepage links to a page listing different languages and the different resources that can be accessed in each. A key resources page typically does not mirror the structure and content of the English-language website and often links to PDF documents.
- Examples: The header of the U.S. Citizenship and Immigration Services’ website, USCIS.gov, includes a link to pages that provide key resources in about 25 languages. The header of HUD.gov, the website of U.S. Department of Housing and Urban Development, provides a link to an “Information in Spanish” page, which lists links to thirteen informational resources as well as recent news releases in Spanish.
- Miscellaneous resources in other languages
- Sparse materials may be available in languages other than English, but materials are not easily accessed from a central webpage or menu on the website, and may not be organized by language. Links to translated documents may appear alongside links to English resources, often with a parenthetical next to the document’s title noting the language in which the resource is available.
- Example: Marketplace.cms.gov, the information source for federal Health Insurance Marketplace assisters, contains Spanish-language resources, such as training materials, smattered around various pages, but they cannot be found in a single, central location.
- A “translate this page” service
- The header or footer of a website has a “translate this page” link, or a link with similar text, that leads to an external and automatic service like Google Translate to render the English version of the page into another language using an algorithm.
- Example: At the bottom of the homepage of crimesolutions.gov, a website hosted by the National Institute of Justice, there is a “Translate This Page” link, which takes users to https://translate.google.com. The use of automatic translation services is no longer as common on federal websites as it was in the past, but many state and local agency websites still use them.
Finally, some federal websites contain no resources or links relating to content or information in non-English languages. Examples include whitehouse.gov, the White House’s website, and nps.gov, the National Park Service’s website.
As we continue to research how agencies facilitate LEP access, WIP hopes to refine these classifications and begin thinking about standards of website language-assistance tools we might advocate for on federal government websites.