Title VII, and comparable state laws, like the Florida Civil Rights Act, prohibit employer actions that have the purpose or effect of discriminating against persons because of their national origin. It is no secret that U.S. work forces are becoming increasingly more diverse. In response to the increased linguistic diversity of the workforce, many employers have implemented policies that limit or completely prohibit their employees from speaking languages other than English while at work, or take action against employees because of their foreign accent. Employers must do so with great caution and deliberation – such practices may violate the national origin protections of Title VII.
Is an English-Only Policy a Business Necessity?
The EEOC and the courts will likely look at English-only policies with skepticism, and will require the employer to justify the policy by showing that it was a "business necessity." Generally speaking, the policy should be narrowly-tailored to address specific concerns. For instance, requiring hospital healthcare workers to speak English around patients due to safety concerns is likely reasonable, but requiring that they speak English at all times, including at lunch and/or in break-room conversations, is typically unlawful.
What about accent discrimination?
An "accent discrimination" claim can arise if an employer takes the adage "the customer is always right" a bit too far. For instance, if a customer or client (or even a co-worker) expresses discomfort or a preference against interacting with an employee because the employee has a foreign accent, an employer can end up facing an EEOC charge or lawsuit if that preference led to some adverse employment action against the employee. However, an employment decision based on foreign accents does not violate Title VII if the accent materially interferes with the ability to perform job duties. Employers should distinguish between a merely discernable foreign accent and one that actually interferes with communication skills necessary to perform job duties. Cases have demonstrated that positions involving teaching, training, customer service, telemarketing, security/safety-sensitive, often have communication requirements which can be materially interfered with due to the foreign accent.
What Does This Mean For Employers?
As a practice, an employer would be wise to document all instances of complaint(s) from students, customers, co-workers, etc., expressly documenting that the person was unable to benefit from the training, customer service, etc., because of the communication problem. This type of evidence could win the day for an employer that later faces a national origin discrimination charge should the employer have to transfer or discharge the employee. As a reference, the EEOC Compliance Manual guidance on national origin discrimination can be found here
. The best practice, of course, if you have concerns about an English-only or other language policy, or if you have an issue involving potential accent discrimination, is to seek the advice of counsel before you take action. Always better safe than sorry!