Language Discrimination: What Employers Should Know*
Discrimination is unequal or different treatment of a person or group of people based on differences such as race, religion, ethnic origin, or disability. Discrimination can also be on the basis of language. Language discrimination in the workplace can occur if an employee has been passed over for a promotion because of his language skills or if the workplace has a policy that requires employees to speak only English while at work. Language discrimination is considered to be discrimination on the basis of national origin and is illegal under federal and most state laws.
Policy Can’s and Cant’s
In most circumstances, employers are prohibited from requiring employees to speak only English at work, but there are certain instances where it is permissible: one involves the employer showing that the requirement is out of “business necessity”; also, if the employer notifies employees about the policy and the specific circumstances in which it applies. For example, dangerous job sites where communication is of critical safety importance.
Although legal in certain situations, English-only policies can be very difficult to enforce because the employer must show that there’s no alternative arrangement that could be just as effective. Additionally, in the case of workers who have proven that they can do their jobs without speaking English, the policy is unlawful.
It’s important to note that any employment-related decision based on a person’s accent can also be discriminatory. Accents are linked to national origin and employers need to carefully consider whether an employee’s accent affects their ability to be understood. If an employee is not hired or promoted into a position because of their accent, this could be discriminatory, particularly if their accent does not impact their ability to do their job. Creating a policy in which employees with accented English cannot be customer-facing will likely be found to be discriminatory.
Creating a Policy
When considering a workplace language policy, it’s important to think about:
Whether everyone truly needs to be able to speak English during their workday. Fostering a more diverse workplace has many benefits including improved productivity, retention, and customer satisfaction. Enhanced language diversity could benefit the company and make it a better place to work for many employees and groups.
If English is required for certain jobs or workplace safety, think about the least discriminatory or offensive way that you can communicate this requirement.
Is there an opportunity for you to play a role in making the workplace more language-inclusive? Consider how you might be able to help break down language barriers between employees. Offering language classes could be a way to improve language diversity and workplace relationships.
Ask your staff for their opinions. You can ask them what challenges they face, whether they feel left out, or what policies they think are reasonable in situations where communication is especially critical.
Employers should remember that discrimination is not just limited to race, religion, and sexual orientation. Language discrimination can influence hiring and promotion decisions and how an employee is treated by their colleagues and managers. Discrimination is often unconscious, so it’s especially important for employers to be aware of the issue and take steps to avoid it.
*This article does not provide legal advice. Refer to relevant legal counsel with questions, advice, or representation on this topic.
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