Language discrimination is a subset of national origin discrimination. Language discrimination refers to the unfair treatment of an individual based solely upon the characteristics of their speech; such as, accent, size of vocabulary, and syntax. It can also involve a person’s ability or inability to use one language instead of another. Because language discrimination is a form of national origin discrimination, the same body of law prohibits it. This type of discrimination generally makes it illegal to prefer one language over another, though there are many exceptions. The driving force behind the illegality of language discrimination is whether or not an individual was hired, fired, or required to speak one language over another for a discriminatory purpose. For more information about national origin discrimination, national origin discrimination.
Language discrimination is the unfair treatment of an individual solely because of their native language or other characteristics of speech, such as accent, size of vocabulary, and syntax. Language discrimination does not include discrimination based upon an individual’s appearance, but rather focuses upon the style of speech used by an individual. This is not to say that discrimination based upon appearance is illegal, for more information on that please see our pages on national origin discrimination, dress codes, and religious discrimination.
Below are some real world examples of language discrimination:
- You have worked at a company for several years, while on break you are talking with 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 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.
Title VII of the Civil Rights Act of 1964 are federal laws that protects individuals from discrimination based upon national origin and race. 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. So if you are being discriminated against for using your native language, or because of characteristics having to do with that language, it may be considered 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 your English proficiency (ability to speak or write in English) as long as it tests all applicants. 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.
The Equal Employment Opportunity Commission (EEOC), which is the federal agency that interprets and enforces the laws prohibiting discrimination, has pointed out that the degree of fluency required varies from job to job, even within the same company. This implies that blanket fluency requirements might be illegal, for example, the level of fluency expected from the customer service department is not necessarily the same as that expected from warehouse workers.
These rules also apply when a job requires fluency in a language other than English. For example, a company that has a substantial amount of customers who speak only Hindi could legally require that employees who interact with those customers also speak Hindi.
Treating an employee differently based on accent is problematic if it is unrelated to job performance – especially if the accent does not obstruct their ability to communicate in English.
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 that requires employees to only speak English at work is illegal if it was adopted for a discriminatory purpose, if it is not uniformly enforced, or – most commonly – if it is not related to and necessary to the specific job it applies to. As long as the English-only rule is not motivated by discriminatory intent, it will be considered legal so long as it is necessary for the safe or efficient operation of the business.
Before adopting an English- only rule, 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, there are some exceptions to this general rule, mainly in several western states, they are 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 addition to the law stated above, the law in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington 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., except in the states noted above, 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. According to Nebraska law:
- 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 for more information.
Victims of national origin discrimination at workplaces of 4 to 14 employees can recover back pay, job offers and reinstatement. IER cases may require 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 may also 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 may also 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 may also 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.
t is always best to contact an attorney if you believe you have a claim for discrimination by your employer. The time to file depends on who you are filing with – such as if you are requesting an administrative investigation or are filing a lawsuit.
You may file a charge with the IER to investigate your employer’s conduct; On average, IER investigations take seven months.
Before a private lawsuit may be filed for workplaces with 15 or more employees, charges for any laws which are enforced by the EEOC must be filed with the EEOC within 180 days of the alleged discrimination. This is extended to 300 days, however, if state law also prohibits employment discrimination on the same basis.
Visit Workplace Fairness’ page on filing a discrimination complaint for more information.