Language Discrimination In Employment: Know Your Rights
With California’s diverse immigrant population, language discrimination can be a barrier to employees obtaining and retaining jobs they are qualified for. This can cause a huge financial toll on their families when they lose job opportunities and wages.
Those who encounter discrimination can also suffer emotional distress and embarrassment if they are cruelly teased about their inability to speak English, or about speaking it with an accent. The humiliation is piled on when they know that they are not getting the good jobs they deserve. Fortunately, language discrimination is illegal under federal and California laws.
What Is Language Discrimination?
Language discrimination happens when a person is treated differently because of his native language or other characteristic of his speech. While there is no law that specifically prohibits language discrimination, it is considered an aspect of discrimination based on national origin—the country that the person or his ancestors came from. Because the primary language a person speaks is closely related to the country he or his family is from, courts and governmental agencies consider language discrimination the same as being discriminated against due to national origin.
It is illegal under both Titles VI and VII of the Civil Rights Act of 1964 and under California’s Fair Employment and Housing Act (FEHA) to discriminate against a person based on his national origin. The FEHA gives employees more protection than federal law because it applies to employers with fewer employees—five or more, versus fifteen—and does not cap noneconomic damages like those for emotional distress and punitive damages.
People can be discriminated against at work based on their language for many reasons. Some ways they can be mistreated include:
- If an employer has a “speak-English-only” rule or suddenly implements one.
- If an employee is treated worse than other employees because she speaks with an accent.
- If an employee is denied a promotion due to a lack of English proficiency or because he speaks English with an accent but is otherwise qualified.
- If a worker who has been allowed to speak another language with co-workers at work is told to never do so in the future when the employer suddenly changes the rules.
When Can an Employer Require You to Speak Only English?
California’s FEHA is stricter than federal civil rights laws in prohibiting employers from requiring workers to speak English only. Employers must meet these requirements:
- The employer must show a business necessity for the rule. A business necessity would only exist if an employer can show that the policy serves an overriding legitimate business purpose, that it is needed for the safe and efficient operation of the business, and that there is no less restrictive alternative. An example could be certain customer service jobs.
- The employer must notify employees of the rule and when they must follow it.
Federal law also requires an employer to show a business necessity and notify the employee of the rule. However, its definition of business necessity makes it more difficult to prove a case of discrimination. The Equal Employment Opportunity Commission (EEOC) guidelines provide that a business necessity can exist if the following is established:
- It enables supervisors who only speak English to monitor employee job performance;
- It promotes safety in emergency situations;
- It promotes efficiency when multi-language speaking workers work on projects with English-only speakers; and
- It promotes customer relations when workers are speaking to customers who only speak English.
Can an Employee Ever Be Treated Differently Due to His Accent?
Treating employees differently due to their accents is also illegal. It would only be permitted if the employer could show that the employee’s accent materially interferes with job performance. This means that it must have a significant impact on his ability to do his job. In addition, the employer must fairly and objectively access the person’s accent.
An employer also cannot deny an employee a job opportunity based on his lack of English fluency or proficiency, unless the job actually requires English-speaking skills and the person does not possess the level of language skill required for the job.
The laws on language discrimination are complicated; it can be difficult to determine whether discrimination is taking place or whether the employer has a legitimate business-necessity justification. If you believe you are the victim of language discrimination, you need an experienced employment discrimination lawer in Irvine who understands how to fight this sometimes subtle form of discrimination. Start an online chat or call us at 949-679-9909 to schedule a free, no-obligation consultation.