Roger Clegg*

Title VII of the Civil Rights Act of 1964 forbids employers from discriminating on the basis of, among other things, "national origin." To what extent does this prohibition limit an employer’s ability to discriminate on the basis of language? Two basic kinds of employer practices are commonly implicated. The first is the requirement that employees speak only English on the job. The second is that the English they speak not be less intelligible because of lack of fluency or a foreign accent.

Logically, of course, language and national origin are distinct. Some people of a particular national origin will desire to speak a non-English language on the job, or will not speak English well, but others will not. Conversely, some people not of that national origin will desire to speak a non-English language on the job, or won’t speak English well. Not every Mexican American will want to speak Spanish on the job or will speak English badly or with a Spanish accent. And there will be some people who aren’t Mexican Americans who will want to speak a foreign language on the job or who won’t speak English well.

The EEOC’s Position

The Equal Employment Opportunity Commission’s "Guidelines on Discrimination Because of National Origin" are set out in 29 C.F.R. part 1606. Section 1606.1, "Definition of national origin discrimination," begins: "The Commission defines national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group."

The italicized passage has some surface appeal but is also potentially troublesome. It is certainly conceivable that an employer might choose to exclude those with a "physical, cultural or linguistic characteristic of a national origin group" as a means of discriminating against that group. For instance, if an employer refused to hire people with Chinese accents, but not those with Japanese or Spanish accents, then there would be strong evidence that he wanted to exclude applicants of Chinese national origin. But in a disparate treatment case the ultimate question will always be whether national origin was in fact the reason for the exclusion. The fact that a characteristic is merely correlated with national origin is not dispositive. For instance, it may be the case that Italians are, disproportionately, reckless drivers; but it is unlikely that a trucking company intends to discriminate by requiring good driving skills.

Section 1606.6, "Selection procedures," cautions that "Fluency-in-English requirements, such as denying employment opportunities because of an individual’s foreign accent, or inability to communicate well in English," "may be discriminatory on the basis of national origin," and thus the Commission "will carefully investigate charges" involving such requirements "for both disparate treatment and adverse impact."

Section 1606.7, "Speak-English-only rules," provides (emphasis added):

A rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. The primary language of an individual is often an essential national origin characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or the language they speak most comfortably, disadvantages an individual’s employment opportunities on the basis of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment. Therefore, the Commission will presume that such a rule violates title VII and will closely scrutinize it.

This certainly makes clear that the EEOC doesn’t like it when employers require employees to speak English at all times, but it does not explain the Commission’s reasoning. What does it mean to say, "The primary language of an individual is often an essential national origin characteristic"? As discussed above, language and national origin are always distinct issues; so, presumably, this says nothing more than that, in the EEOC’s view, the two are highly correlated. The quoted passage then twice assumes the conclusion. It simply asserts that prohibiting employees from speaking the language they’d like to speak disadvantages employment opportunities "because of national origin"; and that it may create a hostile atmosphere "based on national origin which could result in a discriminatory working environment."

Disparate Impact

The clear distinction between language and national origin ought to protect most English-only and English-fluency policies from disparate treatment claims, but employers have more to fear from disparate impact lawsuits. There is no doubt, after passage of the 1991 amendments, that disparate impact analysis is available under Title VII for national origin discrimination, and the EEOC regulations and its Compliance Manual explicitly promise to use that approach (in addition to disparate treatment). If the Commission or a private plaintiff can show that an English-only rule or English-fluency requirement has a disparate impact on those with a particular national origin, then the employer must prove "that the challenged practice is job related for the position in question and consistent with business necessity."(1) Thus, the EEOC asserts in 29 C.F.R. 1606.7 (b) that a speak-English-only rule that is applied only at certain times may be permissible if "the employer can show that the rule is justified by business necessity."(2)

The EEOC’s Compliance Manual—which devotes Section 623 to "Speak-English-Only Rules and Other Language Policies," namely fluency requirements and accent discrimination—outlines the Commission’s disparate impact approach in greater detail. According to the manual, "a speak-English-only policy or practice is presumed to have an adverse impact against the affected group"—that is, it will "adversely affect an individual’s employment opportunities on the basis of national origin where that individual’s primary language is not English"—and "charges of this nature do not require an analysis under the Uniform Guidelines on Employee Selection Procedures."(3) The Compliance Manual discusses some possible business necessity defenses(4), such as productivity and good communication among coworkers, with customers and clients, and with supervisors; the manual is decidedly skeptical about mere customer and coworker "preference" or an employer’s desire to improve employees’ English-language skills.

Don’t Forget IRCA

While Title VII is the most important statute in this area, it is not the only one. The Immigration Reform and Control Act (IRCA) prohibits discrimination against employees on the basis of national origin or because of citizenship status (with some exceptions, the most important being illegal aliens). IRCA is enforced by the Justice Department’s Office of Special Counsel for Immigration Related Unfair Employment Practices. This statute applies to businesses with four or more employees, while Title VII applies only to businesses with fifteen or more employees. According to an Office of Special Counsel "Fact Sheet," it brings national origin cases only against employers with from four to fourteen employees, leaving the rest to the EEOC.(5)

The Justice Department agrees with the EEOC that language discrimination can be national origin discrimination. The Office of Special Counsel states flatly in a brochure: "YOU ARE DISCRIMINATING IF YOU … Demand that employees speak only English on the job." Another brochure says, "National origin discrimination refers to unequal treatment because of nationality, which includes place of birth, appearance, accent, and can include language." That brochure also equates discrimination on the basis of someone appearing to be "foreign" with national origin discrimination. The Office of Special Counsel has run subway and newspaper ads warning that the "ability to speak fluent English" must not "affect [an employer’s] decision about hiring a prospective employee," according to the Manhattan Institute’s Walter Olson.

It is not clear that a disparate impact model is available under IRCA. There do not appear to be any judicial decisions recognizing disparate impact, nor any disparate impact cases brought by the government, under IRCA.

Rethinking the Government’s Role

The courts have been frequently skeptical of the EEOC’s position in this area.(6) Walter Olson has written columns documenting dubious efforts by the government to bar fluency requirements,(7) and the confusion in this area and the aggressiveness of the EEOC also was the subject of a recent Wall Street Journal article.(8)

The fundamental problem with the government’s approach is that it assigns a heavy presumption that any language-based policy is a form of national origin discrimination. This is misguided not only logically, but legally and as a matter of policy, too. The Supreme Court has made clear that national origin discrimination means hostility to a particular ancestry, not a general preference for things American or dislike of things foreign.(9)

Finally and most fundamentally: as a policy matter, why should the government assume that an employer who wants his employees to speak English and speak it well is really trying to discriminate against, say, Mexican Americans because of where they came from? Why should it assume that the company doesn’t have a legitimate, nondiscriminatory reason for such a policy? Are hardworking employees so plentiful that employers will want to hire them and then antagonize them for no good reason?

In a global economy and multi-ethnic country, it seems especially dubious to have the government second-guessing the private sector’s language and communications judgments. Indeed, a fluency requirement could involve a language other than English, in which case its beneficiaries and complainants might be surprising. The EEOC’s Compliance Manual, ironically, supplies this example of a business practice some plaintiffs would challenge as a violation of the law, even though there are sound reasons for it in a multilingual society:

R, a movie theater, requires that all of its employees who have contact with the public be bilingual in English and Spanish. [Plaintiffs] allege that R’s bilingual requirement has an adverse impact on Blacks. R claims that its bilingual requirement is a business necessity since it is located in a community which is primarily Hispanic and the majority of its customers speak only Spanish.

Rather than harass employers who are unlikely to harbor any national origin animus, the EEOC should hold its tongue.

*Roger Clegg is general counsel of the Center for Equal Opportunity, a Washington, D.C.–based think tank. He served in the Reagan and Bush administrations as a deputy in the U.S. Justice Department’s civil rights division.

1. 42 U.S.C. sec. 2000e-2(k)(1)(A)(i).
2. But even then, according to Section 1606.7 (c), the employer must inform its employees of when the rule applies and what the consequences for violating it are—otherwise, "the Commission will consider the employer’s application of the rule as evidence of discrimination on the basis of national origin."
3. EEOC Compliance Manual, 165-66, sec. 623.6.
4. Id.170-74, sec. 623.6(d).
5. Cf. 8 U.S.C. 1324b (b)(2) (aimed at preventing overlap in EEOC/Title VII complaints and Office of Special Counsel/IRCA complaints).
6. See Christine Cesare & Lisa Lerner, "English Only" Policies: A Guide for the Perplexed,10 Emp. L. Strategist 1 (Feb. 1996); Tim A. Thomas, Annotation, Requirement that Employees Speak English in Workplace as Discrimination in Employment under Title VII of the Civil Rights Act of 1964, 90 A.L.R. Fed. 806 (1988 & 1997 Supp.); When Does Adverse Employment Decision Based on Person’s Foreign Accent Constitute National Origin Discrimination in Violation of Title VII of the Civil Rights Act of 1964?, 104 A.L.R. Fed. 816; Michael J. Zimmer et al., Cases and Materials on Employment Discrimination 773-82 (1997 & 1998 Supp.); see also Lisa L. Behm, Protecting Linguistic Minorities Under Title VII: The Need for Judicial Deference to the EEOC Guidelines on Discrimination Because of National Origin, 81 Marq. L. Rev. 569 (1998).
7. Anti-Discrimination Ad Absurdum, N.Y. Post, Aug. 24, 1997; Say What?: Civil rights enforcers go after "accent discrimination,"’ Reason, Nov. 1997, at 54.
8. Ann Davis, English-Only Rules Spur Workers to Speak Legalese, Wall St. J., Jan. 23, 1997, at B1.
9. The Supreme Court ruled in Espinoza v. Farah Manufacturing Co., 44 U.S. 86 (1973), that it was not national origin discrimination when a pre-IRCA employer refused to hire a noncitizen. The Court there—per Justice Marshall, with Justice Douglas the only dissenter—endorsed an early EEOC opinion, that "’national origin’ refers to the country from which the individual or his forbears came…, not whether or not he is a United States citizen…" (id. at 94, quoting EEOC General Counsel’s Opinion Letter, 1 CCH Employment Prac. Guide para. 1220.20 (1967)). The Court had correctly noted, "Certainly the plain language of the statute supports [that] result" (id. at 88), and thought Title VII’s legislative history "suggest[ed] that the terms ‘national origin’ and ‘ancestry’ were considered synonymous" (id. at 89). What’s more, the Court expressly rejected the EEOC’s attempt to ban discrimination against foreigners by arguing that it would have a disparate impact on the basis of national origin (id. at 92-95). It would seem to follow that discrimination against all foreign languages and accents doesn’t violate the law; only discrimination against a language or accent associated with a particular national origin.