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 employers
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
wont 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 arent
Mexican Americans who will want to speak a foreign language on the
job or who wont speak English well.
The EEOCs Position
The Equal Employment Opportunity Commissions "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 individuals,
or his or her ancestors, place of origin; or because an individual
has the physical, cultural or linguistic characteristics of a national
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 individuals 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
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 individuals
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 doesnt like it when
employers require employees to speak English at all times, but it
does not explain the Commissions 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 EEOCs view, the two
are highly correlated. The quoted passage then twice assumes the
conclusion. It simply asserts that prohibiting employees from speaking
the language theyd 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."
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 EEOCs Compliance Manualwhich devotes Section 623
to "Speak-English-Only Rules and Other Language Policies,"
namely fluency requirements and accent discriminationoutlines
the Commissions 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 individuals employment
opportunities on the basis of national origin where that individuals
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 employers
desire to improve employees English-language skills.
Dont 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
Departments 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 employers] decision about hiring a prospective employee,"
according to the Manhattan Institutes 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 Governments Role
The courts have been frequently skeptical of the EEOCs 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 governments 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 doesnt 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 sectors
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 EEOCs 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 Rs 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 Departments
civil rights division.
- 42 U.S.C. sec. 2000e-2(k)(1)(A)(i).
- 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 areotherwise,
"the Commission will consider the employers application
of the rule as evidence of discrimination on the basis of national
- EEOC Compliance Manual, 165-66, sec. 623.6.
- Id.170-74, sec. 623.6(d).
- Cf. 8 U.S.C. 1324b (b)(2) (aimed at preventing
overlap in EEOC/Title VII complaints and Office of Special Counsel/IRCA
- 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 Persons 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.
- Anti-Discrimination Ad Absurdum, N.Y. Post,
Aug. 24, 1997; Say What?: Civil rights enforcers go after "accent
discrimination," Reason, Nov. 1997, at 54.
- Ann Davis, English-Only Rules Spur Workers
to Speak Legalese, Wall St. J., Jan. 23, 1997, at B1.
- 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 thereper Justice Marshall, with
Justice Douglas the only dissenterendorsed 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
at 94, quoting EEOC General Counsels 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 VIIs
legislative history "suggest[ed] that the terms national
origin and ancestry were considered synonymous"
(id. at 89). Whats more, the Court expressly rejected the
EEOCs 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 doesnt violate
the law; only discrimination against a language or accent associated
with a particular national origin.