Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon national origin. Some courts and government agencies have said that discrimination based on language is a form of national origin discrimination because primary language is closely related to the place a person comes from.
For example, generally, an English language fluency requirement is permissible only if required for the effective performance of the position for which it is imposed. Because the degree of fluency that may be lawfully required varies from one position to the next, employers should avoid fluency requirements that apply uniformly to a broad range of dissimilar positions.
As with a foreign accent, an individual’s lack of proficiency in English may interfere with job performance in some circumstances but not in others. For example, an individual who is sufficiently proficient in spoken English to qualify as a cashier at a fast food restaurant may lack the written language skills to perform a managerial position at the same restaurant that requires the completion of copious paperwork in English. As illustrated below, the employer should not require a greater degree of fluency than is necessary for the relevant position.
Jorge, a Dominican national, applies for a sales position with XYZ Appliances, a small retailer of home appliances in a non-bilingual, English-speaking community. Jorge has very limited skill with spoken English. XYZ notifies him that he is not qualified for a sales position because his ability to effectively assist customers is limited. However, XYZ offers to consider him for a position in the stock room. Under these circumstances, XYZ’s decision to exclude Jorge from the sales position does not violate Title VII.
Title VII permits employers to adopt English-only rules under certain circumstances. As with any other workplace policy, an English-only rule must be adopted for nondiscriminatory reasons. An English-only rule would be unlawful if it were adopted with the intent to discriminate on the basis of national origin. Likewise, a policy that prohibits some but not all of the foreign languages spoken in a workplace would be unlawful.
Even when an English-only rule has been adopted for nondiscriminatory reasons, the employer’s use of the rule should relate to specific circumstances in its workplace. An English-only rule is justified by “business necessity” if it is needed for an employer to operate safely or efficiently. The following are some situations in which business necessity would justify an English-only rule:
- For communications with customers, coworkers, or supervisors who only speak English.
- In emergencies or other situations in which workers must speak a common language to promote safety.
- To enable a supervisor, who only speaks English, to monitor the performance of an employee whose job duties require communication with coworkers or customers.
It is common for individuals whose primary language is not English to inadvertently change from speaking English to speaking their primary language. Therefore, if an employer believes it has a business necessity for a speak-English-only rule at certain times, the employer should inform its employees of the general circumstances when speaking only in English is required and of the consequences of violating the rule. If an employer fails to effectively notify its employees of the rule and makes an adverse employment decision against an individual based on a violation of the rule, the EEOC will consider the employer’s application of the rule as evidence of discrimination on the basis of national origin.
If you have questions regarding Homeowner’s Association Policies, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.