This page provides answers to the following questions:
Language discrimination means treating individuals differently in their employment because of their native language or other characteristics of speech, such as accent. Examples of language discrimination include:
- You have worked at a company for several years, and while on break and while talking to other Chinese coworkers, you usually speak in Cantonese. Your company recently announced a "speak-English-only" policy, and your supervisor has told you not to ever speak Cantonese to your coworkers while at work.
- A new customer service position opens up in your company. You apply for the job because it pays a higher salary and more regular work hours. Even though you are fully fluent in English, you are told by the supervisor that you cannot be considered for the position because you speak with a Spanish accent. Another employee who speaks with a British accent is interviewed for the position.
- English is not your native language, although you are proficient in English and have no difficulty doing your job as a computer programmer. On your last performance review, you received high marks in every area except communication skills. When you ask your supervisor the reason for your low marks, which prevent you from getting a merit raise, you are told the reason is your English skills, even though your job rarely requires you to communicate with coworkers or the public.
If any of these things have happened to you on the job, you may have suffered language discrimination.
Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon national origin and race. Some courts and governmental 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. So if you are being discriminated against for using that language, or because of characteristics having to do with that language, that is considered essentially the same as if you were being discriminated against because of your national origin. This area of the law is still developing, however, so you should also consult with a local attorney for more information.
Your employer or potential employer can test an employee on English proficiency (ability to speak or write in English), as long as the the employer tests all applicants. However, if the employer or potential employer denies someone an employment opportunity because of English proficiency, the employer must show a legitimate, nondiscriminatory reason. Whether or not it is illegal to use the English test will depend on the qualifications of the employee, the nature of the position, and whether the employee's level of English proficiency would have a negative effect on job performance. Requiring employees or applicants to be fluent in English may violate the law if the rule is not related to the requirements of the position or job performance, and it appears that the rule was adopted to exclude individuals of a particular national origin.
An employer must show a legitimate, nondiscriminatory reason for denying an employment opportunity because of an individual's accent or manner of speaking. Whether the denial is illegal will depend on the qualifications of the person, the nature of the position, and whether the employee's accent or manner of speaking harmed, or would harm, job performance. Requiring employees or applicants to be fluent in English may violate Title VII if the rule is adopted to exclude individuals of a particular national origin and is not related to job performance.
A preference for a particular type of accent may also violate the law. For example, if a candidate with a British accent is favored for a receptionist position, while candidates with Cantonese or Spanish accents are rejected, the employer may have engaged in unlawful discrimination by showing a bias against the accent associated with some national origins, but not against others.
Similar to employees who speak with accents, an employer must show a legitimate, nondiscriminatory reason to deny you of an employment opportunity because of proficiency (how well you speak or write) in English. Whether or not it is illegal to discriminate against you will depend on your qualifications, the nature of the position, and whether your level of English proficiency would have a detrimental effect on your job performance. Requiring employees or applicants to be fluent in English may violate Title VII if the rule is adopted to exclude individuals of a particular national origin and is not related to job performance.
A rule requiring employees to speak only English at all times on the job may violate the law, unless an employer shows it is necessary for conducting business. If an employer believes the English-only rule is critical for business purposes, employees have to be told when they must speak English and the consequences for violating the rule. Any negative employment decision based on breaking the English-only rule will be considered evidence of national origin discrimination if the employer did not tell employees of the rule, except in several western states as noted below.
In California, as of January 1, 2002, there is a specific legal provision which makes it illegal for an employer to adopt or enforce a policy that limits or prohibits the use of any language in any workplace, unless both of the following conditions exist: (1) the language restriction is justified by a business necessity; and (2) the employer has notified its employees of the circumstances and the time when the language restriction is required to be observed and of the consequences for violating the language restriction. “Business necessity” is defined as “an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.”
In the states of Alaska, Arizona, California (but the above state law still applies), Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, there is a court decision that requires one of the following two circumstances for an employee to challenge a “speak-English-only” policy in the workplace under federal law:
- the rule is applied to employees who speak no English or who have difficulty speaking English; or
- the policy creates, or is part of, a work environment that is hostile toward national origin minority employees.
If, initially, an employee is able to show that either of those conditions applies, the employer must show some “business necessity,” a sufficiently compelling and clearly job-related need, for the policy. Even if the employer does demonstrate business necessity, the policy is still illegal if there are less discriminatory alternatives to the policy that achieve the same goals just as effectively.
At this point, although the law on language discrimination continues to evolve, employees in the U.S. but not in these states do not have to show either of the two conditions. The mere existence of a policy, whether or not it affects or targets national origin minority employees, is evidence of discrimination which may only be overcome by the employer's business necessity.
In Nebraska, a statute called the Protections for Non–English Speaking Employees Law offers several protections for workers whose primary language is not English. The law applies to employers that employ 100 or more workers and recruit or hire non–English-speaking workers residing more than 500 miles from the place of employment, and where more than 10 percent of the employers' workforces are non-English-speaking and speak the same non-English language.
- Employers must provide non-English-speaking workers with required written information about the job and obtain the person's signature on a statement acknowledging having received that information before hiring.
- Employers are required to provide bilingual employee interpreters to assist non-English speaking workers in carrying out their job responsibilities and to provide them with information on community services.
- Employers are also required to transport employees who quit within 4 weeks back to the locations from which they were recruited.
The Department of Justice's Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) is responsible for investigating charges of job discrimination related to an individual's language or national origin in workplaces with 4 to 14 employees.
The Equal Employment Opportunity Commission (EEOC) is responsible for investigating charges of job discrimination related to an individual's language or national origin in workplaces of 15 or more employees.
Depending on where you live, you may also go to a state or local fair employment agency. See filing a discrimination complaint.
If there are 4-14 employees at your workplace, contact the OSC.
Victims of national origin discrimination at workplaces of 4 to 14 employees can recover back pay, job offers and reinstatement. OSC settlements require employers to stop discriminatory practices, pay civil penalties, undergo monitoring, and receive anti-discrimination training.
Victims of national origin discrimination at workplaces of 15 or more employees can recover remedies that include:
- back pay
- front pay
- reasonable accommodation
- other actions that will make an individual "whole" (in the condition he or she would have been but for the discrimination).
Remedies also may include payment of:
- attorneys' fees
- expert witness fees
- court costs.
Under most laws enforced by the EEOC, compensatory and punitive damages also may be available where discrimination is found to be intentional. Damages may be available to compensate for actual financial losses, for future financial losses, and for mental anguish and inconvenience. Punitive damages also may be available if an employer is found to have acted with malice or reckless indifference. Punitive damages are not available to employees of federal, state or local governments.
An employer may be required to post notices to all employees about discriminatory violations and advising them of their rights to be free from discrimination and retaliation. Such notices must be accessible, if necessary, to workers with disabilities that affect reading.
The employer also may be required to take corrective or preventive actions against the person or persons responsible for the discrimination and minimize the chance that it will happen again, as well as stop the specific discriminatory acts.
Your state may have similar or different remedies not available under federal law. For further information, see our page on filing a discrimination complaint.
To protect your legal rights, it is always best to contact a state or federal adminstrative agency or an attorney soon after discrimination is suspected.
For workplaces with 4-14 employees, a charge must be filed with OSC within 180 days from the date of the alleged violation.
For workplaces with 15 or more employees, please note that all laws enforced by EEOC require filing a charge with EEOC (or a cooperating state agency) before a private lawsuit may be filed in court. Many states also require that you file first with a state anti-discrimination agency or EEOC. There are strict time limits within which charges must be filed.
See filing a complaint for more information.
This page was updated on December 18, 2008