|
National Origin Discrimination Primer
English Proficiency and Accent
English-Only Rules
Review Policies, Examine Business Need for Decisions
A recent guidance from the
EEOC clarifies the agency’s rules on
discrimination based on national origin and highlights both
English-only rules and accent discrimination. Take the time now to
make sure your policies comply.
[Creating HR Policies or Employee Handbook?]
The Equal Employment Opportunity Commission (EEOC) has issued a
guidance to explain national origin discrimination and to provide
examples of appropriate and inappropriate employer policies and
actions. The guidance is included as a new chapter in the EEOC
compliance manual, which is issued to
EEOC investigators and serves
a dual purpose to help employers understand their obligations. It
expands on previously issued regulations and agency positions, but
does not create any new duties or change the way Title VII of the
Civil Rights Act (Title VII) is implemented.
Several trends and events were cited by the EEOC as triggering the
updated guidance: a ten-year pattern of increased immigration; the
events of September 11, 2001; and a steady rise in the number of
national origin claims filed. This new focus on national origin
discrimination should prompt you to review your policies and
procedures to make sure you are in compliance with both the letter
and spirit of the law.
National Origin
Discrimination Primer
[Download Free Policies]
To help explain what conflicts can arise, the guidance begins with a
primer on Title VII’s national origin discrimination requirements.
Its protections apply to all workers in the United States,
regardless of where they were born or their citizenship status. The
guidance makes it clear that you cannot refuse to hire or promote or
take other adverse employment action against people because of their
ancestry or ethnic background, country of origin, or nationality.
Other actions considered discriminatory are those taken against a
person because of physical or linguistic characteristics or any
manner of dress associated with a national origin.
The guidance addresses several aspects of national origin
discrimination, including discrimination in recruitment, hiring,
promotion, assignment, discipline, and discharge; harassment based
on national origin; and citizenship requirements. It also discusses
the potential for discrimination in policies that require a certain
level of English fluency or that prohibit employees from speaking
their native language in the workplace.
English Proficiency and
Accent
The EEOC guidance reinforces that employers generally may require
employees to have a certain level of English proficiency and to
speak in a manner that can be understood. However, an employer must
be able show that it has legitimate business reasons to require
English fluency or that an accent interferes with the person’s
ability to perform the duties of the job.
• English proficiency. The guidance indicates that a
proficiency requirement is permitted if it is required for the
effective performance of a particular job. However, the EEOC warns
that the level of fluency should be tailored to the job’s
requirements. Thus, as an example, a person who speaks only limited
English could be denied a sales position if the employer’s current
and prospective customers primarily speak English. However, if the
same person applied for a janitorial position requiring little or no
English, he should be considered for the job.
• Accents. The EEOC also carefully scrutinizes those
situations in which employment opportunities are denied because the
worker has a foreign accent that is difficult to understand.
Generally, the accent must “materially interfere” with an
individual’s ability to perform the job effectively. For example,
you can refuse employment if the individual is hard to understand
and oral communication is an important component of the job.
However, the guidance emphasizes that you may not refuse to hire a
person who has only a discernible foreign accent or if the job does
not require communication skills.
English-Only Rules
The EEOC takes the position that English-only rules can hinder
employment opportunities since they may prevent certain employees
from speaking their primary language or the language they speak most
comfortably. However, employers may require English spoken at
certain times if they can show a business need. The guidance
identifies four situations when business necessity would justify an
English-only rule:
1. For communications with customers, coworkers, or supervisors who
only speak English.
2. In emergencies or other situations in which workers must speak a
common language to promote safety.
3. For cooperative work assignments in which an English-only rule is
needed to promote efficiency.
4. To enable a supervisor who speaks only English to monitor the
performance of an employee whose job duties require communication
with coworkers or customers.
The guidance does not specifically discuss break times, but the EEOC
regulations and most courts have determined that employees should
not be restricted to English during their breaks. The guidance also
requires employers to notify employees when English is required and
what the consequences are of rule violations.
Review Policies, Examine Business Need for Decisions
Over the last several years, the EEOC has aggressively pursued
employers for national origin discrimination. In particular, the
EEOC has targeted English-only rules and has settled numerous
English-only claims with large penalties, ranging from $55,000 to
$2.4 million in damages. National origin harassment claims also are
on the rise, some of which may be attributable to a reaction to the
terrorist attacks. The issuance of this guidance signals the
agency’s commitment to enforcing the law and to educating employers
about their obligations.
To make sure your organization is in compliance, you should take a
careful look at any policies and practices that may have a negative
effect on applicants or employees because of their national origin.
In particular, you should examine:
• English fluency and accent requirements. Any English
proficiency or neutral accent requirements should be tailored to the
duties of the position and should reflect the job’s actual
communication needs. Do not simply require all employees to possess
a certain level of fluency unless you can show that such capacity is
required in all jobs. In addition, do not exclude a worker with
foreign accent from a job unless the accent interferes with the
person’s ability to be understood.
• Harassment policy. Make sure your harassment policy
specifically prohibits harassment based on national origin, and
train employees about national origin discrimination. Some employers
make the mistake of limiting their policies to sexual harassment,
when in fact all forms of harassment against protected classes
should be covered.
• Dress codes. As a general rule, you can regulate what your
employees wear to work, but you must be consistent in how you
enforce any dress code. For example, you cannot prohibit a
particular ethnic group’s fashion choices if you do not regulate
what other employees wear. In addition, be prepared to accommodate
employees whose religious beliefs require the wearing of certain
ethnically-based dress, such as Muslim headdresses.
• English-only rules. If you implement a rule requiring
English spoken at certain times in the workplace, apply the policy
narrowly to business-related situations and allow employees to speak
other languages during breaks. Also, consider alternatives, such as
sponsoring English classes or hiring managers with special language
skills.
The new EEOC guidance is a timely reminder of your duty to prevent
national origin discrimination. Most all employers, and not just the
ones in major metropolitan cities or border states, are encountering
an increasingly diverse workforce. Your challenge is to align your
practical business needs with both the law and the sensitivities of
your workers. A proactive approach that abides by the law and
accommodates changing employee needs will go a long way to creating
a productive work environment that also protects against legal
challenges. |
Personnel
Policy Service, Inc.
