HR Management & Compliance

National-Origin Discrimination, Part 2: EEOC Issues New Guidance; What You Need to Know About Language Policies and Citizenship Discrimination

The U.S. Equal Employment Opportunity Commission recently issued new guidance to help employers understand the prohibitions against national-origin discrimination and to suggest best practices for fostering a bias-free workplace. Last month, we reviewed what the guidelines have to say about employment decisions and workplace security issues. This month, we’ll explain the guidelines concerning language requirements and citizenship.


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Language Issues

As the U.S. labor force has grown more ethnically diverse, the number of workers who are not native English speakers has increased dramatically. But employers who have legitimate business reasons for basing employment decisions on accent or fluency should be especially careful because these characteristics are closely linked with national origin. Here are some key points the EEOC guidance makes:

  • Accents. You may only base an employment decision on an employee’s accent if effective oral communication in English is required for the job and the accent significantly interferes with this. Some examples are teaching, customer service, and telemarketing. For instance, you could transfer a Ghanaian hotel concierge to a clerical position involving less spoken communication if his accent is so thick customers can’t understand him.

     

  • Fluency. You can impose English fluency requirements only if fluent English is necessary for effective job performance. Because the degree of necessary fluency varies from one position to the next, the EEOC cautions employers to avoid fluency requirements that apply across the board or require a greater degree of fluency than is necessary. Note, too, that you can require fluency in languages other than English, but only if such fluency is necessary for the job.

     

  • English-only rules.Some employers have policies barring communication in languages other than English, often called “English-only rules.” These are permissible only if they’re justified by business reasons, such as for safety or efficiency, and are enforced only during on-duty hours. The rules must be adopted for nondiscriminatory reasons, and a policy that prohibits some but not all foreign languages in a workplace, such as a no-Navajo rule, would be unlawful.

    Examples of when business necessity would justify an English-only rule include: to communicate with customers, co-workers, or supervisors who only speak English; in emergencies or other situations in which workers must speak a common language to promote safety; for cooperative work assignments in which an English-only rule is needed to promote efficiency; and to enable a supervisor who speaks only English to monitor the performance of an employee whose job duties require communication with co-workers or customers.

The EEOC suggests that employers consider the following factors when deciding whether to implement an English-only policy:

  1. Whether you can justify the rule based on safety or other business reasons, such as supervision or effective communication with customers;
  2. The likely effectiveness of the rule in carrying out your business objectives;
  3. The English proficiency of employees affected by the rule; and
  4. Whether there are alternatives to an English-only rule that would be equally effective in promoting safety or efficiency.

Citizenship-Related Issues

It’s generally illegal to discriminate based on an employee’s citizenship. For example, you could run into legal trouble if you refuse, based on citizenship, to hire a Mexican citizen who is authorized to work in the U.S. if you’ve hired citizens of other countries. Refusing to hire this person would suggest national-origin discrimination.

The EEOC also points out that non-U.S. citizens are protected by a variety of employment laws besides federal antibias law. They include the Fair Labor Standards Act, the Immigration Reform and Control Act of 1986, and certain visa programs.

What’s more, foreign nationals who work in the United States, regardless of citizenship or work authorization, are protected by Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Equal Pay Act. Although federal law prohibits you from hiring individuals who lack work authorization, employers who nonetheless employ undocumented workers are prohibited from discriminating against them.

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