Language Discrimination: Everything You Need to Know
Language discrimination falls under a class of unlawful discrimination known as national origin discrimination & illegal to prefer one language over another.7 min read
Language discrimination falls under a class of unlawful discrimination known as national origin discrimination. Barring exceptions, it is illegal to prefer one language over another. Language discrimination does not include discriminations based on a person's appearance.
It is important to understand what exactly is meant by language discrimination in order identify if you are being discriminated against.
It applies to an individual who is being treated unfairly due to the nature of their speech, including their accent, vocabulary, and syntax. Broadly, it is an individual's grasp of a language that is not their first language.
Language discrimination is mainly focused on the illegality of hiring, firing or requiring a person to speak a certain language due to discrimination. It may also apply if an individual is barred from access to government or business services due to the fact they cannot speak or write English sufficiently.
These are some real world examples of language discrimination to assist in helping you better understand language discrimination:
- You are fluent in Cantonese and use the language to speak to colleagues. Suddenly one day your company announces an "English only" policy, and your manager further tells you to never speak Cantonese to your colleagues again.
- You are denied an interview for a job in customer service due to the fact that, although you speak English fluently, you have a Spanish accent. You find out that another candidate was interviewed, and they have a British accent.
- You are passed over for a promotion, which you are qualified for, because of your lack of language skills. The job requires little or no communication with colleagues or the public.
What Federal Laws Cover Language Discrimination?
Individuals are protected from discrimination based upon national origin and race Title VII of the Civil Rights Act of 1964.
The federal agency that is responsible for the interpretation and enforcement of the law is known as the Equal Employment Opportunity Commission (EEOC).
Is It Permitted to Require an Individual to Take an English Test in Order to be Hired?
A company may or may not test for English fluency depending on the situation. (This also applies to roles requiring fluency in other languages besides English)
If a company tests all candidates for English skills, then English tests are permitted.
A company may deny employment based on a candidate's English proficiency, but they must be able to prove that their reasons are nondiscriminatory. The reason for denial needs to take into account the nature of the job, the candidate's credentials, and whether the candidate's level of English proficiency would negatively impact their ability to perform satisfactorily.
The employer will be in violation of the law if it is found that English fluency is not a requirement of the role and instead the requirement is being used as a way to deny persons of a certain national origin. The EEOC states that the level of English proficiency needed is different depending on the job, even if the job is at the same company. This means that the law prohibits company-wide English fluency policies.
As an example of acceptable language proficiency requirements, an organization that has a large customer base of Hindi speakers could, without being in violation of the law, require individuals who deal with those customers to be fluent in Hindi.
What If I Am Treated Differently Because of My Accent?
An employer would be in violation of the law if they show a preference for certain accents. If an individual with a British accent is shown preference over an individual with a Cantonese accent, this would be considered unlawful discrimination against the Cantonese individual's national origins.
If a person's accent hinders their ability to communicate clearly in English in a certain role, an employer may have the right to deny hiring or promoting the individual.
Can an Employer Discriminate Against Me for Poor English Communication Skills?
An employer may not discriminate against an employee for poor English communication skills if the employee's job does not require fluency in English.
Employers are prohibited from implementing English-only policies, broadly or to specific workers, in order to exclude individuals from particular national origins.
If an English-only policy is put in place, for it to be legal, the employer must be able to prove that is not for discriminatory purposes but rather the policy exists to create a more effective business.
Furthermore, before implementation of the English-only policy, employees must be notified of when English must be spoken and be provided with an outline of the penalties that will apply if the policy is broken. If an employee is in violation of the policy but is unaware of the policy's existence and the employer alters their employment state, the employer could be found guilty of national origin discrimination. It must be noted that several western states have exceptions to this rule.
Enforceable Circumstances of an English-Only Rule
It can be difficult to find evidence that the law is being broken when the English-only policy is only applied to workers who are fluent in English and their first languages, particularly in California and other western states.
If a job does not require fluency in English but an employer still implements English-only policies directed towards employees who do not speak English very well, this may be unlawful.
Employers may not penalize employees for speaking a little of their own language during working hours or away from work, and they may not subject the employees to never-ending monitoring.
If a team has members that only speak English, an English-only policy would be acceptable in order to allow for efficient communication between team members.
Employers are permitted to request that employees speak only English when dealing with English-speaking customers. It is, however, not permitted for an employer to forbid employees from speaking any other language or from speaking their own language to a customer who is also fluent in it.
California Legalities Around English-Only Rules
A legal provision put in place in California on January 1, 2002, prevents employers from implementing any policy that restricts the use of another language. This provision excludes circumstances where the employer implements the policy due to business necessity. If the employer adopts a language policy, they need to let employees know why it is being implemented when it is coming into effect, and what the penalties for violating the policy will be.
Under federal law, the following states permit individuals who wish to challenge an English-only policy to do so:
However, this can only be done in the following circumstances:
- The policy is specifically applied to non-English speaking and poor-English speaking employees.
- The policy causes, or exacerbates, hostility to national origin minority workers.
Other states in the U.S. do not, at this time, require employees to show conditions of discrimination.
Unless the employer does so out of business necessity, an English-only policy is proof of discrimination.
Nebraska Legalities Around English-Only Rules
For employees in the state of Nebraska whose first language is not English, the Protection for Non-English Speaking Employees Law exists to help protect them.
There are a number of limitations on this law in Nebraska. It only applies to the following types of employers:
- Employers with 100 or more employees.
- Employers that hire or recruit non-English-speaking employees who live more than 500 miles from the employer.
- Employers whose workforce consists of more than 10 percent non-English-speaking employees, who speak the same language (non-English).
Before hiring, businesses need to supply their non-English speaking employees with written information regarding the job and ensure the employees sign the document to acknowledge receipt.
If an employer has non-English speaking employees, they are required to support these employees by using interpreters to assist the employee with their job. It is also necessary, if an employee quits, to provide transport back to the recruitment location of the employee.
What Is Business Necessity?
A business necessity in terms of language discrimination refers to a real business purpose that requires employees to speak a certain language or be proficient in a certain language. An example would a customer service representative who primarily deals with English-speaking customers. If the organization used customer service representatives who could not speak English proficiently, there would a lot of miscommunication and frustration from both sides. This could negatively impact the business and thus is it a business necessity that the employer implements certain language policies.
Who Enforces the Law for Language Discrimination?
For companies of four to 14 workers, the Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible.
For companies with more than 15 workers, the Equal Employment Opportunity Commission (EEOC) is responsible.
Depending on where you live, you may also go to a state or local fair employment agency.
What Remedies Are Available for Language Discrimination?
Employees who have suffered from discrimination can recover back pay, job offers, and reinstatement.
OSC settlements require companies to refrain from discriminating against employees from other national origins, pay fines, undergo monitoring, and institute anti-discrimination training.
EEOC settlements offer remedies such as back pay, hiring, promotion, reinstatement, front pay, and reasonable accommodation. These remedies may include attorney and expert witness fees as well as court costs. Compensatory and punitive damages may also be available where discrimination is found to be intentional. The punitive damages, however, are not available to employees of federal, state, or local governments.
It should be noted that certain states may have different remedies not available under federal law.
How Long Does It Take to File a Charge of Discrimination?
It is important to contact your attorney or federal administrative agency as soon as you suspect discrimination has taken place. This protects your rights.
For companies with a workforce of four to 14 employees, the charge should be filed with the OSC within 180 days of the date you suspect you were discriminated against.
For companies in California with a workforce larger than 15 employees, you should make a complaint at the EEOC within 300 days of the date when the violation occurred. If an organization has more than five workers, a charge can be filed with the California Department of Fair Employment and Housing (DFEH) within one year. If you believe you are being harassed or subjected to a hostile work environment, the DFEH has no minimum number of employees in order to file with them.
For larger companies (15 or more employees), the law requires the charge be filed with the EEOC before any private lawsuit is filed.
For workplaces with four or fewer employees or the federal government, employees should contact an attorney.
Is Language Discrimination Unlawful?
Language discrimination is considered to be discrimination on the basis of national origin. This is prohibited by federal and California law.
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