by Brad Cave
Q: Will I be in violation of federal discrimination laws if I provide an “English as a second language” (ESL) employee English language training at the company’s expense?
A Any possible discrimination charge under Title VII of the Civil Rights Act of 1964 would be based on national origin. The Equal Employment Opportunity Commission (EEOC) has promulgated express guidelines for employers with employees who don’t speak English as their primary language. The agency has recognized that employers sometimes have legitimate business reasons for basing employment decisions on linguistic characteristics, but because those characteristics are closely associated with national origin, you must be careful to ensure that the business reasons you rely on justify any burdens placed on employees because of their national origin.
For example, an employment decision based on an employee’s foreign accent isn’t discriminatory if his accent significantly interferes with the ability to perform his job duties. In other words, you can’t treat an employee differently just because he has an accent. The accent itself must have a negative impact on his ability to perform the duties of his job. Of course, the test depends on the specific job duties in question and the extent to which the person’s accent affects his ability to perform the required job duties. Positions for which effective oral communication in English may be required include teaching, customer service, and telemarketing.
Similarly, English fluency requirements are permissible if they are necessary for the effective performance of the position for which they are imposed. Invariably, the degree of fluency required will depend on the position itself. Therefore, you shouldn’t impose uniform fluency requirements for a broad range of similar positions (such as requiring the same degree of fluency for a baggage handler and a customer service representative at an airport).
Thus, offering the employee at issue an opportunity to participate in English language training at the company’s expense to improve his oral communication skills isn’t likely to constitute grounds for a national origin discrimination charge, particularly if the employee’s difficulties with English are actually resulting in diminished job performance and/or customer complaints.
Brad Cave is a partner with Holland & Hart LLP and practices in the firm’s Cheyenne, Wyoming office. He is the editor of Wyoming Employment Law Letter. You can contact him at bcave@hollandhart.com.