Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of national origin and race. The federal courts, the United States Department of Justice and the Equal Employment Opportunity Commission (EEOC) have determined that employment decisions solely based on a person’s primary language is a form of national origin discrimination. Primary language is related to national origin; thus, refusing to hire or promote employees because of their accents, their level of English fluency or requiring that they only speak English in the workplace may be violations of Title VII, depending on the specifics of the work situation.
A person’s accent or manner of speaking cannot be the only reason for a refusal to hire or promote that person. Employers must show a legitimate, non-discriminatory reason for making a personnel decision on the basis of accent. They must distinguish between a discernible foreign accent and one that interferes with job-related communication. Jobs that require effective oral communication in English include teaching, customer service and telemarketing. A preference for a specific accent is also a form of language discrimination. For example, a business might prefer to hire a receptionist with an Irish or British accent rather than one with a Spanish or Vietnamese accent.
Employees cannot be prohibited from speaking their primary language when it is not directly related to their work; for example, when they are in the break room or making a personal telephone call. Employers must show a business need for an English-only policy, must notify all employees about the policy and give them a “grace period” before it is enforced. Typically, companies will implement English-only policies for emergency situations or areas where clear, prompt communication is essential to workers’ health and safety, such as a laboratory or manufacturing process involving hazardous chemicals. An English-only policy may also be appropriate in customer service situations, when employees must work together to complete a task, or when an English-speaking supervisor must monitor workers’ performance in communicating with co-workers and customers.
Language Fluency Discrimination
Fluency or proficiency is the degree to which a person can speak and write a language with ease. An employer may refuse to hire or promote a worker if that person does not have the required English fluency level. In the 1990, Shieh v. Lyng case, a federal appeals court ruled that plaintiff Shieh was lawfully demoted because his English language skills were too limited to enable him to produce the complex scientific manuscripts required by his position. A business may require its workers to speak certain foreign languages if it is necessary for conducting business, and the employer may assign tasks to workers based on their foreign language fluency. However, employers are not required to provide additional pay for work performed in a foreign language.
Remedies for Language Distrimination
Victims of language discrimination may be eligible for back pay, job offers and reinstatement. A claim must be filed with the United States Department of Justice Office of Special Council if the business employs four to 14 people or the EEOC if there are 15 or more employees. Victims may also file lawsuits against their employers, provided they first file a claim with the Department of Justice or the EEOC.