Are Language Rules at Work Employment Discrimination?

English isn't your first language. But you've found a job where that doesn't matter. You work hard. Sometimes you put in long hours. Doing good work is important to you. You're using your skills and becoming a valuable employee. But it feels like things are changing. Maybe you're noticing co-workers laughing about your accent. Or perhaps the company wants to begin English fluency testing. Maybe you suspect your English skills are the reason you were just passed up for a big promotion.

You could be facing language discrimination. This is illegal. But the laws and remedies available to you can be confusing. You will want to speak with an employment law attorney about your situation. You can speak with them privately. They can help you figure out your next steps.

In this article, we'll review how United States law treats language discrimination against employees and job applicants. State laws can also help. But it depends on your state. For example, an English-only work policy may be illegal discrimination in one state but not another. So, it's important you talk to a lawyer in your state.

Let's begin by explaining language discrimination.

What Is Language Discrimination?

Language discrimination is unfair treatment of someone because of the language they speak or how they speak it. In the U.S., language discrimination usually targets people who don't speak English or whose native language isn't English.

If the unfair treatment is based on someone's accent, we call that “accent discrimination." It's a kind of language discrimination.

Language discrimination in the workplace may take many forms. This can include:

• Forcing workers to only speak English
• Setting unreasonable English fluency requirements
• Harassing someone because of their accent

These are just a few examples. But you want to be able to recognize language discrimination. This is because it's usually illegal.

When Is Language Discrimination at Work Illegal?

Generally, workers in the U.S. are protected from language discrimination. This is because the law bans this type of unfair treatment.

Federal Law

Title VII of the Civil Rights Act of 1964 (Title VII) is a federal law that prohibits different types of employment discrimination. The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces it.

Title VII applies to almost all employers in this country. One type of discrimination banned by Title VII is discrimination on the basis of national origin. It also prohibits employment discrimination based on:

• Race
• Color
• Religion
• Sex/gender

The EEOC has determined that language-based discrimination is a form of national origin discrimination. This means that federal law bans language discrimination at work.

State Law

State and local law often provide additional protections against language discrimination. 

For example, California's law has more complete protections against workplace language discrimination. It actually mentions “language discrimination." It also applies to more employers than Title VII.

New York's law even goes farther. It protects against language discrimination and requires employers to provide services and tools to help workers with limited English skills do their jobs.

What Does This Mean?

Workers have the legal right to a fair and equal workplace, even if English isn't their first language. Federal law protects this right. So do many state laws.

It also means employers can't treat employees or job applicants unfairly just because of their accent or English language skills.

This doesn't mean that all language requirements or rules are language discrimination. Sometimes they're allowed. But there must be a business necessity for them. If there's not, then they may be considered illegal language discrimination.

Business Necessity

Language requirements must satisfy the business necessity test. This means they have to be truly necessary for the business to operate safely and effectively. The language requirements can't just be a preference or convenience. Why? Because that's discrimination.

The test requires the following of a language rule:

• Genuine need: It's essential for the job or for safety reasons.
• Direct relation: It's clearly connected to job performance or safety.
• Narrow application: It's as limited as possible while still meeting the business need.
• No alternatives: Less discriminatory options to achieve the same goals aren't available.
• Consistent enforcement: It's applied uniformly to all employees in similar roles.

We often see these language restrictions in job qualifications and workplace policies.

English-Only Rules

Your employer may have English-only rules for certain roles or circumstances. These are allowed if there's a business necessity for them. There could be many reasons English-only rules might be okay in specific situations. Some examples are:

• Safety concerns: English-only emergency procedures for chemical spills in high-risk areas so all workers can understand and respond to workplace safety alerts/instructions immediately
• Business operations: English-only customer service communications for English-speaking customers
• Efficiency: English-only real-time communications during group project meetings and on shared documents

With a business necessity, a write-or-speak-English-only language policy is okay. But it should apply only when needed. Workers should still be allowed to choose the language they speak during breaks and personal time.

Employment Decisions

Language discrimination can occur in all aspects of employment. This includes hiring, firing, pay, and promotions. So, employers need a business reason to make these decisions based on someone's English skills.

Without a business necessity, it's usually illegal for an employer to:

• Reject qualified job candidates because English isn't their primary language
• Fire a worker because of customer complaints about the employee's accent
• Pay less to non-native speakers for the same work
• Deny a promotion to a qualified candidate due to their accent
• Terminate an employee for speaking their native language during break
• Pay more to bilingual employees only if English is their first language

However, these practices might be allowed if an employer has legitimate business reasons for them.

Language-Based Harassment

Harassment at work is another type of workplace discrimination. It involves repeated and unwanted conduct.

Language discrimination is conduct based on someone's accent, language skills, or native language. If this targeted conduct is so severe or frequent, it can create a hostile work environment. When it does, it's considered harassment. This can interfere with someone's ability to do their job. And it's illegal.

There's never a legitimate business reason/necessity for language-based harassment.

This type of harassment can take many forms. These might include:

• Mocking an Indian employee's accent or way of speaking
• Correcting a Latino employee's English pronunciations in a demeaning way
• Excluding Somali employees from meetings because of their language barriers
• Telling offensive jokes about people with Spanish accents
• Regularly interrupting or talking over Hispanic employees who have limited English proficiency
• Using insulting nicknames based on a Turkish employee's language or accent

These behaviors may come from co-workers. But it doesn't matter who is harassing you. Employers have a duty to prevent and address workplace discrimination and harassment. And you have the right to a workplace free from both.

If You're Experiencing Workplace Language Discrimination

If you think you're facing language discrimination at work, an employment law attorney can help you understand your options.

You may be worried that speaking up will make the problem worse. It's illegal for an employer to take negative action against you for reporting discrimination. This is called “retaliation." If an employer retaliates, they can face harsh penalties. And additional remedies and protections will be available to you.

In the meantime:

Gather Information

Document everything. Keep records of communications and incidents related to the unfair treatment.

File Agency Charges

In most cases, you'll need to file a discrimination charge with the EEOC before you can sue. For state protections, you may also need to file with state agencies.

Speak With Human Resources

In some cases, your human resources department may be able to help. However, you may fear retaliation or not trust them.

For these and other reasons, you may want to touch base with an employment attorney before taking action.

Getting Legal Advice

You should speak with an attorney as soon as possible. Government agencies have strict deadlines. You don't want to miss them. State law is also very important for your claims. So, find a lawyer who knows the employment laws of your state.

This is easy with FindLaw's directory of employment attorneys. Just click on your state and narrow by city  to see information for local experts. Many are bilingual. Several offer free consultations.

Reach out to an attorney today. They can help you decide what to do. More importantly, they can fight for your rights.