ACLU of Northern California
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Language Rights
What is language discrimination ?
Language discrimination means treating someone differently solely because of his or her native language or other characteristics of speech. On the job, for example, an employee may be subjected to language discrimination if the workplace has a "speak-English-only" policy, especially if her primary language is not English. An employee may also be the victim of language discrimination if she is treated less favorably than other employees because she speaks English with an accent, or if she is told she does not qualify for a position because she does not speak English well enough.
But language discrimination doesn't only happen on the job. For example, a person may be denied access to businesses or government services because he or she does not speak English.
Is language discrimination illegal?
Although the law in this area is still developing, there are many court decisions which have found language discrimination to be a violation of people's constitutional rights and civil rights laws.
Some courts have found language discrimination to be the same as discrimination based on race or national origin. As early as 1926, the United States Supreme Court ruled that a requirement that accounting records be kept in English or local dialects but not Chinese violated the Constitution (Yu Cong Eng v. Trinidad). (1) In 1974, the Supreme Court ruled that failure to provide bilingual instruction for public school students who did not speak English effectively denied them equal access to educational opportunities, and thus constituted national origin discrimination under Title VI of the Civil Rights Act of 1964, (Lau v. Nichols). (2) And, as recently as 1991, the court ruled that in some cases, language-based discrimination should be treated as race discrimination (Hernandez v. New York). (3)
Other courts have also protected the right of language minority groups to be free from discrimination. Those courts have reasoned that even if language and national origin were not synonymous, language-based discrimination disproportionately harms national origin minorities and can, for instance, violate Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination because of national origin.
These cases include rulings against accent discrimination (Carino v. Univ. of Oklahoma Bd. of Regents, (4) and a finding from a Texas court that a "rule that Spanish cannot be spoken on the job obviously has a disparate impact upon Mexican-American employees". (Saucedo v. Brothers Well Service). (5)
In addition to court decisions, there are also federal and state laws prohibiting language discrimination. The Guidelines on Discrimination Because of National Origin, published by the Equal Employment Opportunity Commission (EEOC) to interpret Title VII of the federal Civil Rights Act, prohibit English-only rules, accent discrimination, and other forms of language discrimination without a strong business justification. (6) The California Fair Employment and Housing Act also bans practices that disproportionately impact minority workers. (7)
There are other laws which may also apply to language discrimination in employment, by business and by government. On the federal level, these include the federal Civil Rights Act of 1866, which bans racial discrimination in the making and enforcement of contracts, including employment contracts, and Title VI of the Civil Rights Act of 1964 which prohibits race and national origin discrimination by recipients of federal funds, such as universities and police departments.
In California, we also have the Unruh Civil Rights Act, which bars business establishments and places of public accommodation from discriminating on race or other arbitrary grounds and the Unfair Practices Act, which prohibits unfair and unlawful business practices.
Why is Language Discrimination Illegal?
These laws make it illegal for employers to discriminate against an employee because of his or her national origin. "National origin" generally refers to the country that a person, or that person's ancestors, came from. The primary or ancestral language of a person is closely related to her ethnicity and national origin. Therefore, discrimination against that language has the same effect as national origin discrimination, just as discrimination based on surname or color goes to one's race or national origin.
The U.S. Equal Employment Opportunity Commission (EEOC) is the federal government agency responsible for interpreting and enforcing Title VII of the Civil Rights Act. The EEOC has long held that national origin discrimination includes "the denial of equal employment opportunity because . . . an individual has the physical, cultural or linguistic characteristics of a national origin group," [emphasis added] (12) and that the "primary language of an individual is often an essential national origin characteristic." (13)
Common sense -- and an immense body of academic research in the areas of linguistics and sociology -- tells us that the connections between ethnicity and language are extremely close and important. For practical purposes, they are often inseparable. (14)
There is always the danger that language discrimination can be used purposefully or even unconsciously as an excuse for race and national origin discrimination. Because of subtle, unconsciously held stereotypes, an employer may assume, for instance, that a job applicant with a Hispanic accent is less qualified than one with an British or French accent. (15)
When Can an Employer Require an Employee to Speak Only English at Work?
The EEOC generally views "speak-English-only" policies as being illegal under the Civil Rights Act unless justified by business necessity. However, a recent case in California refused to follow the EEOC Guidelines on these policies, instead holding that English-only rules must be evaluated on a case-by-case basis. (Garcia v. Spun Steak Co) (16)
This decision came in a case where two Latina meat processing plant workers were disciplined for speaking Spanish on the job. Under this ruling, which applies to California and eight other western states, the court stated that an employee may challenge a "speak-English-only" policy in the workplace under federal law if:
1) the rule is applied to employees who speak no English or who have difficulty speaking English; or
2) the policy creates, or is part of, a work environment that is hostile toward national origin minority employees. Examples of a hostile work environment would include, for instance, the rule being applied in a very harsh manner, or a pattern of harassment in addition to the English-only rule.
If an employee is able to show that either of those conditions applies, then the employer must show a "business necessity" for the policy -- that is, that the rule is "necessary to safe and efficient job performance," and that there are no other alternatives which would serve the employer's legitimate interests with a less discriminatory effect. (Dothard v. Rawlinson; Griggs v. Duke Power Co; Civil Rights Act of 1991) (17).
The business necessity standard is hard to meet. Unless an employer can show that the work in question genuinely requires that communications between employees be in English (as opposed to any other language), that all workers must be able to understand all communications between all other workers, and that the consequences of a lapse in communication are serious, it is unlikely that the standard can be satisfied.
According to the EEOC Compliance Manual, the "business necessity" standard would apply, for example, to a team of workers on an oil drilling rig who are responsible for its operation and where constant communication understood by everyone is required. The business necessity standard would also apply to operating room medical staff who are performing surgery.
On the other hand, forcing co-workers in a kitchen or on an assembly line to speak only English while conversing with each other simply because other workers are uncomfortable, or because customers dislike hearing foreign languages, is not a "business necessity." (18)
(See "Guidelines and Questions for Employers Considering the Use of Workplace `Speak-English-Only' Rules" in the Appendix).
In addition, the employer must also meet the additional requirement that a speak-English-only rule is the least discriminatory means of addressing any bona fide business concerns -- and this is hard to do. If an employer imposes these kind of rules because of tensions between different ethnic groups of workers, for example, the rules may actually worsen the situation by making language minority workers feel demeaned, humiliated, and resentful. There are far more effective and equitable ways to defuse personal disputes and tensions, which typically run deeper than any objections to the use of a particular language. Rather than imposing discriminatory rules, employers should bring in cross-cultural sensitivity training or other, more direct means of addressing the underlying interpersonal problems.
Though the ruling in Garcia allowed some English-only restrictions at worksites, Title VII of the Civil Rights Act remains even stronger in states outside California and several other western states. There, the EEOC Guideline, which presumes that "speak-English-only" workplace rules adversely impact national origin minority workers even if they are able to speak English well, remains in effect. Courts in those areas may thus require employers to prove business necessity after the simple showing that such a rule exists.
Moreover, California employers are subject to the Fair Employment and Housing Act, which (as discussed above) has been interpreted to bar English-only rules unless justified by business necessity.
When Can an Employer Treat an Employee Differently Because of His or Her Accent?
If an employee is discriminated against because of his or her accent when speaking English, this also constitutes a violation of the employee's civil rights, since an accent is a characteristic of one's national origin. (20) In general, one cannot be denied an employment opportunity on the basis of accent unless that accent "materially interferes with job performance." (21) Moreover, the courts will closely examine an employer's claim that a national origin minority employee who speaks with an accent had inadequate communications skills to determine whether the claim was honest and bona fide. (22)
An employer's assessment of an employee's accent must not be influenced by subtle prejudices in favor of some accents, for example a preference for British or French accents over others, such as Spanish or Chinese, is impermissible. (23)
One recent case illustrates how the courts look at claims of accent discrimination in the workplace (Xieng v. People's National Bank of Washington 24). In Washington, a Cambodian man charged that he was not promoted because of his accent. The Washington State Supreme Court agreed, holding that the employee had successfully shown that his job performance was not impaired by his accent.
The court noted that it is legitimate for an employer not to promote someone on the basis of their accented speech only if the accent interferes materially with job performance. However, the court stated that "[a]ccent and national origin are obviously inextricably intertwined in many cases. It would therefore be an easy refuge in this context for an employer unlawfully discriminating against someone based on national origin to state falsely that it was not the person's national origin that caused the employment or promotion problem, but the candidate's inability to measure up to the communication skills demanded by the job." (25)
In short, then, any assertion that an employee's accent prevents that employee from performing his or her job adequately must be examined very carefully and with an awareness of possible subjective and cultural biases. Sometimes code words such as "communication skills" or "professionalism" are used by employers to refer indirectly to an employee's accent. Very often, accents are assessed "off the cuff" without any documentation that the employer used valid, objective or consistent criteria to evaluate whether or not it really affected the job performance. For those reasons, the employer's judgment may well be indefensible.
When Can an Employer Treat an Employee Differently because He or She Cannot Communicate Well in English?
An employer may not deny a person an employment opportunity because that person is not proficient or fluent in English, unless the job
1) actually requires some English language skills; and
2) the person does not possess the particular type and level of English language skill required to do the job. (26)
In many cases, of course, doing a job successfully will actually require a certain degree of proficiency in English. This is the case where the job, for instance, involves composing documents, reading and understanding complicated written materials, or communicating regularly with the English-speaking public.
However, if a person is told that she does not qualify for a position because she is unable to speak or read English well enough, but the position is one which requires little or no communication skills -- for example, a job as a night custodian or on an assembly line where the work is routine or individualized in nature -- she may have a strong claim of language discrimination. Moreover, even if the job requires some English proficiency, an employer cannot require a higher level or different type of proficiency than the job actually requires, thereby disqualifying otherwise qualified individuals.
There are many ways in which an employer may claim that a person does not know enough English for the job in question. Some employers will simply assert that based on past job performance, the employee or applicant does not understand English well enough; others will use a test that purports to measure English proficiency.
The problem with using English language proficiency as a job requirement, however, is that it tends to disproportionately exclude national origin minorities, especially recent immigrants, from employment opportunities. Whatever screening method is used, the law is clear that where that method has a disproportionate impact on minority applicants or workers, the requirement must be "validated" -- that is, the English proficiency requirement must be clearly related to the job in question, based on the actual job skills that are required. (27)
In evaluating English proficiency as a job requirement, the only proper questions are:
(1) whether a certain level or type of English proficiency is truly required for the job, and
(2) whether the means the employer uses to measure that proficiency are accurate and do not require more proficiency, or a different sort of proficiency (such as written as opposed to oral English), than is actually needed for the job itself.
What Other Types of Language Discrimination Are Prohibited by Law?
Language discrimination exists outside the workplace as well. For instance, if a person is denied services by a business establishment because of her lack of English language skills, or if a person is unable to communicate with a government agency because the agency does not offer materials in her language or have personnel who speak her language, this may be a violation of other civil rights laws. Here are some examples:
Discrimination by businesses. In California, the Unruh Civil Rights Act prohibits "business establishments of every kind whatsoever" from discriminating on the basis of sex, color, race, religion, ancestry, national origin or disability. The California Supreme Court has interpreted the Unruh Act broadly to protect persons from discrimination based on other "personal characteristics", even if they are not specifically listed in the statute (29).
Such characteristics have included long hair or unconventional dress, families with children, and sexual orientation.
Thus, the Unruh Act probably applies to language-based discrimination by businesses, particularly if the discrimination cannot be justified by a good reason. The term "business establishment" as used in the Unruh Act has been interpreted broadly to cover all types of businesses, commercial as well as non-commercial, that are open to and serve the public (30).
In addition, there are other, more specific laws that prohibit discrimination by banks and credit agencies and insurance companies. (31)
Lack of bilingual services at public agencies. In California, the Bilingual Services Act (32) requires all state public agencies to provide bilingual public contact personnel and written materials in any non-English language that is spoken by at least 5 percent of those served at any particular office.
Local agencies are under a similar requirement where they serve a substantial number of language minorities. Thus, for example, if a Spanish speaker is unable to file a claim or communicate in Spanish at a public office, and at least 5 percent of the clientele of that office are Spanish-speakers, that agency is required to provide written and oral language assistance.
What Should You Do If You Think You May Have Been Subjected to Language Discrimination?
If you think you may have been discriminated against by your employer because of your language, your accent or other characteristics related to your language, you can act to fight the discrimination.
You may file a charge of national origin discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") within 300 days of the discriminatory act, if your employer has at least 15 employees.
If your employer has at least 5 employees, you may instead file a charge of national origin discrimination with the California Department of Fair Employment and Housing ("DFEH") within one year of the discriminatory act.
If your place of employment is unionized, you should first consult with the union to see if they can help you or if you can file a grievance.
It is always advisable to speak with an attorney if one is available to you before filing any charges. However, if you do not have an attorney, you can still file discrimination claims with these agencies.
If you feel you may have suffered language-based discrimination, or if you simply would like more specific legal advice about your legal rights against language discrimination, you should contact the Language Rights Line, a joint project of the Employment Law Center of the Legal Aid Society of San Francisco and the American Civil Liberties Union Foundation of Northern California. The Language Rights Line is a free telephone advice and referral service. Assistance is available in Spanish, Cantonese, Mandarin and English.
The number for the Language Rights Line is 1- 800-864-1664.
GUIDELINES AND QUESTIONS FOR EMPLOYERS CONSIDERING THE USE OF WORKPLACE "SPEAK-ENGLISH-ONLY" RULES
1.Is there a business necessity for the rule? Some commonly asserted employer rationales include:
a.Employee morale: Employees may complain about co-workers speaking in a language they do not understand. However, this usually reflects underlying, more deeply rooted interpersonal tensions that are best dealt with directly, rather than by imposing sanctions that fall only on certain ethnic groups -- and which would, if anything, increase workplace tensions. And even assuming that employees are in fact using their proficiency in another language to denigrate co-workers -- i.e., that the problem is not imagined -- there probably are more individualized solutions, tailored to particular situations, that are preferable to imposing a plant-wide rule that stigmatizes all who speak that language.
b.Efficiency: The argument that English should be enforced for efficiency reasons ignores the fact that workers are generally able to communicate more accurately and quickly in their primary language.
c.Safety: Again, in an emergency or other safety-sensitive situation, employees will generally be able to communicate more efficiently and quickly with each other in their primary language. Indeed, federal OSHA regulations encourage employers to administer safety trainings in employees' primary language, be that English or otherwise, to ensure maximum comprehension.
d.Improving employees' English proficiency: Although it may be a laudable goal for employers to assist their employees in learning English, requiring them to speak it or suffer discipline or termination is an extremely punitive (not to mention ineffective) means of doing so. Employers interested in increasing employees' English proficiency have profitably done so through other means, such as providing access to ESL (English as a Second Language) classes. Moreover, if the employees were hired for their jobs at their existing English skill levels, it would seem difficult to justify increasing their proficiency levels on business necessity grounds.
e.Distraction: Some employers claim that it is distracting for workers to overhear conversations in non-English languages they do not understand. This argument lacks a foundation in common sense, i.e., one is more likely to be distracted hearing a conversation one does understand, than a language one does not. If an employer was truly concerned about distracting conversation, the proper approach would be a rule against all unnecessary speech, not just speech in languages other than English.
f.Monitoring employees' work: This rationale assumes that overhearing what employees are saying to each other is a primary method of evaluating their work. But employers commonly use other methods to do so -- visual inspection, quality control checks, and so forth. In any event, it is hard to see why a speak-English-only policy would be needed for this purpose, since (if the employees speak English to begin with) it is unlikely they would refuse to speak to a supervisor in English about work-related issues.
2.Even assuming that there is some bona fide business purpose which the speak-English-only policy was intended to achieve, are there less discriminatory, better-tailored means of achieving that purpose?
3.Is the policy applied to those having difficulty speaking English? Under the U.S. Ninth Circuit Court ruling in Garcia v. Spun Steak, employers should not impose such a policy upon workers who have difficulty speaking English.
4.Does the policy tend to create a hostile work environment? Under Garcia, if a speak-English-only policy creates or contributes to an overall environment of discrimination against national origin minority employees, it will probably be found illegal. Some factors to be considered:
a.Employers should keep in mind the close connection between an employee's primary language and that employee's cultural and ethnic identity. Suppressing one's primary language imposes differential burdens on that person because of her national origin, and may contribute to feelings of intimidation, inferiority and isolation.
b.Is the policy applied unreasonably, or in a "draconian" manner, so as to make employees nervous about even minor slips of the tongue?
c.Is the policy applied only to members of some ethnic groups, but not others?
d.Even if the policy itself may not create a hostile work environment toward national origin minorities, does it combine with existing tensions to create or aggravate such an environment?
e.Is the policy applied in a consistent manner, predictably and without arbitrariness?
5.Is the policy clear as to the circumstances under which languages other than English may not be spoken, and the consequences of violating that policy?This pamphlet is intended to provide accurate, general information regarding your legal rights concerning language discrimination. Yet because laws and legal procedures are subject to frequent change and differing interpretations, the Employment Law Center and the American Civil Liberties Union Foundation of Northern California cannot ensure the information in this pamphlet is current, nor can they be responsible for any use to which it is put. Do not rely on this information without consulting an attorney, the Language Rights Line, or the appropriate agency about your legal rights in your particular situation.
The Employment Law Center, a project of the Legal Aid Society of San Francisco, and the American Civil Liberties Union Foundation of Northern California have jointly established the Language Rights Project to end language-based discrimination in the workplace and in other sectors of society.
The Language Rights Project is made possible by generous grants from the Rosenberg Foundation and the San Francisco Foundation.
This pamphlet has been produced by the Employment Law Center and the ACLU Foundation of Northern California; they are solely responsible for its content. Any reproduction of this pamphlet without the express consent of the Employment Law Center and the ACLU Foundation of Northern California is prohibited.
Design: Isondesign
The number for the Language Rights Hotline is:
1-800-864-1664
credits to: http://www.aclunc.org/language/lang-report.html
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BO BICE 
MARIO VASQUEZ
NIKKO SMITH
