As a customer of almost any business there is a high
probability that you will interact with someone who speaks in accented English
or speaks little English. As an employer, there is also a high probability that
your job applicants will speak in accented English. Customers should to be
patient and polite; Employers need to be cautious of not violating the law.
A colleague had a difficult time placing an in person order
with a store employee who spoke accented English. They asked me if it was
illegal for employers not to hire people who had difficulty clearly
communicating with customers. The short answer is, yes. Any employer that
discriminates against an applicant for their accent or attempts to establish an
English only policy without establishing a business necessity would more than
likely be in violation of Title VII of the Civil Rights Act of 1964. Employers
cannot use English only policies to discriminate against employees or
prospective employees due to their accent or lack of English skills.
A lot of small business owners that I’ve encountered do not
have documented hiring policies. They have a basic understanding of hiring
laws, but still hire who they “like” with little documentation. Establishing a
hiring component such as business necessity can be laborious for small
businesses.
The Equal Employment opportunity Commission explains language
discrimination as follows.
Discrimination
Based on Accent
Treating employees
differently because they have a foreign accent is lawful only if accent
materially interferes with being able to do the job.
- Generally, an employer may only base an employment decision on accent if effective oral communication in English is required to perform job duties and the individual's foreign accent materially interferes with his or her ability to communicate orally in English.
- Jobs that may require effective oral communication in English include teaching, customer service, and telemarketing to English speaking clients.
- If a person has an accent but it is able to communicate effectively and be understood in English, he or she cannot be discriminated against.
The EEOC has stated
that rules requiring employees to speak only English in the workplace violate
the law unless the employer can show that they are justified by business
necessity.
- A rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, will rarely be justified.
- An English-only rule should be limited to the circumstances in which it is needed for the employer to operate safely or efficiently.
- Circumstances in which an English-only rule may be justified include: communications with customers or coworkers who only speak English; emergencies or other situations in which workers must speak a common language to promote safety; cooperative work assignments in which the English-only rule is needed to promote efficiency.
- Even if there is a need for an English-only rule, an employer may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of violating it.
The complete EEOC pamphlet on immigrant rights can be found
at
EEOC: Immigrants' Employment Rights Under FederalAnti-Discrimination Laws
EEOC: Immigrants' Employment Rights Under FederalAnti-Discrimination Laws
State laws may also apply to these hiring situations.
Employers should always consult their employment law attorney before
establishing any hiring requirements.
See the blog archive for other posts about hiring.
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