Monday, March 22, 2021
Brooke E. López Acquisitions Director & Staff Reporter (2020 – 2021)
Though there are over 350 languages spoken in the United States, employers continue to discriminate against employees who have an accent or speak multiple languages in the workplace.¹ This is known as language-related discrimination. Language-related discrimination violates Title VII of the Civil Rights Act of 1964, which is an anti-discrimination statute that protects employees from adverse employment actions on the basis of sex, religion, national origin, color, and race.²
What conduct is considered language discrimination? It might seem confusing that language is not listed as one of the characteristics protected under Title VII. However, language discrimination is considered a form of national origin discrimination—that is, discrimination on the basis of culture. Typically, language is associated with a specific national origin group.³
There are three main types of language-related discrimination. The first type is multilingual discrimination which occurs when an employer discriminates against an employee because they fluently speak more than one language. Typically, multilingual employees will be asked to translate in a different language from the one commonly spoken at the workplace without additional compensation.⁴ This practice of underpaying multilingual employee is a valid language-related employment discrimination.⁵
The second type is language discrimination which occurs when an employer discriminates against an employee because they are speaking another language in the workplace than the one commonly spoken. A common example is a “speak English only” policy, which is a rule set in place by an employer requiring employees to only speak English in the workplace.⁶ When an employer prohibits employees from speaking their primary language, that employee is disadvantaged in their ability to fully communicate.⁷ A “speak English only” policy becomes a valid claim when (1) primary languages are prohibited at all times, or (2) primary languages are prohibited some of the time and there is no justified business necessity or proper notice.⁸ Justified business necessities are limited to circumstances when an employer has to operate safely or efficiently. Examples of these circumstances include emergencies, cooperative work assignments, or communications with customers or coworkers who only speak English.⁹
The third type is accent discrimination which occurs when an employer discriminates against an employee because of their accent or difficulty in speaking English. Accent discrimination rises to a level of a valid claim when an accent does not interfere with the ability to perform necessary job duties.¹⁰ An accent has only been considered an interference when effective communication skills are reasonably related to job performance.¹¹ Positions where effective communication skills may be required include teaching, customer service, and telemarketing.¹²
If you think your employer has discriminated against you because of your ability to speak multiple languages, instituting a speak English only policy, or your accent, you can consider pursuing a Title VII claim against your employer or former employer. If successful, you can potentially seek reinstatement of work or monetary relief. The next section discusses how and when you can file these claims.
How do I file a Title VII discrimination claim? If you plan on filing a Title VII claim against an employer—regardless of whether it based on language discrimination, you will need to consult with the Equal Employment Opportunity Commission (“EEOC”). The EEOC is a federal agency within the Department of Labor that manages Title VII claims. It is important to note that you will not be able to pursue a private Title VII claim without first filing a charge with the EEOC.¹³ This means a private lawyer cannot file a Title VII claim without first receiving the right to sue.
Deciding whether or not to file a claim against an employer or former employer is not easy.
These questions can help you determine whether you qualify to file a Title VII claim:
Have 180 days passed since the employer’s last discriminatory act?Typically, a Title VII claim has to be brought by the EEOC within 180 days from the last discriminatory act—meaning the last time an employer discriminated against you.¹⁴ In some states, like Texas, a Title VII claim for language discrimination must be brought within 300 days of the last discriminatory act.¹⁵ This timeframe distinction varies from state to state depending on available state and local antidiscrimination laws.¹⁶ If the EEOC does not accept your claim, a private lawyer must bring the claim within 30 days of the right to sue notice.¹⁷
Am I an employee or contractor? Contractors are not protected under Title VII.¹⁸ A court will look to a variety of factors to determine if a worker is a contractor such as whether (1) the employee is free from control and direction, (2) that the work is outside the scope of the usual course of business for the employer, and (3) the worker customarily engages in an independent trade/occupation. Even if you are labeled as a contractor, you may still qualify as an employee.¹⁹ Furthermore, undocumented workers are equally protected under Title VII.²⁰
Does my employer have 15 or more employees? Employers who have less than 15 employees are not subject to Title VII.²¹ Independent contractors are not considered employees.
Is my employer a private club or religious institution? Employees who work for private clubs (e.g., a private yacht club) or a religious institution (e.g., a religious private school or church) may be barred from pursuing an action.²²
Have I faced an adverse employment action? To raise a Title VII claim, you must have personally faced an “adverse employment action,” which is some form of negative action that affects your employment. This can include a hostile work environment, termination, denial of promotion, failure to hire, less favorable work assignments, or decreased compensation or benefits.²³
If you have questions or think you have a valid Title VII claim, locate your nearest EEOC office here.
Sources ¹ Census Bureau Reports at Least 350 Languages Spoken in U.S. Homes; https://www.census.gov/newsroom/press-releases/2015/cb15-185.html. ² 42 U.S.C.S. § 2000e-2. ³ 29 CFR 1606.1. ⁴ Section 2 Threshold Issues, U.S. Equal Emp. Opportunity Comm’n (May 12, 2000), https://www.eeoc.gov/laws/guidance/section-2-threshold-issues. ⁵ Id. ⁶ 29 CFR 1606.7. ⁷ Id. ⁹ Fact Sheet: Immigrants' Employment Rights under Federal Anti-Discrimination Laws, EEOC, (Apr. 27, 2010), https://www.eeoc.gov/laws/guidance/fact-sheet-immigrants-employment-rights-under-federal-anti-discrimination-laws. ¹⁰ Carino v. University of Okla. Bd. of Regents, 750 F.2d 815, 819 (10th Cir. 1984). ¹¹ Yili Tseng v. Florida A&M Univ., 380 Fed. App'x. 908, 908-10 (11th Cir. 2010). ¹² Fact Sheet: Immigrants' Employment Rights under Federal Anti-Discrimination Laws, EEOC, (Apr. 27, 2010), https://www.eeoc.gov/laws/guidance/fact-sheet-immigrants-employment-righ.... ¹³ 29 CFR 1601.13. ¹⁴ Id. ¹⁵ Timeliness, U.S. Equal Emp. Opportunity Comm’n – Dallas Field Office, https://www.eeoc.gov/field-office/dallas/timeliness; 29 CFR 1601.13. ¹⁶ 29 CFR 1601.13. ¹⁷ Id. ¹⁸ Section 2 Threshold Issues, U.S. Equal Emp. Opportunity Comm’n (May 12, 2000), https://www.eeoc.gov/laws/guidance/section-2-threshold-issues. ¹⁹ Lerohl v. Friends of Minn. Sinfonia, 322 F.3d 486, 489 (8th Cir. 2003). ²⁰ Rescission of Enforcement Guidance on Remedies Available to Undocumented Workers under Federal Employment Discrimination Laws, U.S. Equal Emp. Opportunity Comm’n (June 27, 2002), https://www.eeoc.gov/laws/guidance/rescission-enforcement-guidance-remedies-available-undocumented-workers-under-federal. ²¹ Section 2 Threshold Issues, U.S. Equal Emp. Opportunity Comm’n (May 12, 2000), https://www.eeoc.gov/laws/guidance/section-2-threshold-issues. ²² Section 2 Threshold Issues, U.S. Equal Emp. Opportunity Comm’n (May 12, 2000), https://www.eeoc.gov/laws/guidance/section-2-threshold-issues; EEOC v. Chi. Club, 86 F.3d 1423 (7th Cir. 1996); Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020). ²³ Section 2 Threshold Issues, U.S. Equal Emp. Opportunity Comm’n (May 12, 2000), https://www.eeoc.gov/laws/guidance/section-2-threshold-issues.
