August 29, 2006 > Watercooler Counsel
Are we speaking the same language here?
by Rich Proulx
Q: Our workforce is about 70 percent Hispanic. Some speak English, some don't. Since we work in construction, we're thinking about starting an English-only policy, for safety reasons. Do you see any problems with that?
A: Here are the two questions to ask yourself. How would an English-only policy suit the circumstances of your particular workplace? Will it have a discriminatory impact on employees and applicants? According to Bryne Moore, EEOC Investigator, the law permits employers to adopt English-only rules only if you can show that the rule is justified by "business necessity" - if it's necessary for the business to operate safely or efficiently. But adopting an English-only policy just because you or co-workers are uncomfortable with a language you don't understand, or to reduce the number of Hispanics working there, these circumstances could invite a charge of illegal discrimination. Also, requiring English only at all times and all locations in the workplace has previously gotten employers into legal hot water. How can you justify controlling what language your employees use on their breaks? In sum, before adopting an English-only rule, consider whether there are any alternatives that would be equally effective in promoting better morale and communication, as well as safety and efficiency. If you decide to go ahead, think through how to apply the policy in a way that is fair and consistent.
Q: My employment agency has recently received many requests for people with "minimal foreign accents." I know many folks with a strong accent who are quite fluent in English, but I am concerned that employers assume otherwise. How can we meet the expectations of clients, and still refer positions to capable workers?
Caught in the Middle
A: There is the law, and then there is reality, and it's certainly easy to get caught in the middle! First, the law: it is legal to make employment decisions based on accent when it materially interferes with the ability to perform job duties. Choosing a receptionist because you think her British accent is 'cool' or rejecting that Yemeni applicant because you don't think his accent 'fits the company image' doesn't meet this standard. An employer should assess: first, the specific job duties; and second, the extent to which the individual's accent affects his or her ability to perform them. Accent may not be as relevant for positions such as a security guard as it would for a telephone operator. Also, employers should distinguish between a merely discernible foreign accent and one that interferes with necessary communication skills.
So, let's say your most qualified candidate is a worker who speaks accented English. How do you respond to a request for "minimal foreign accent"? As an employment agency, you can be liable for the discriminatory actions of your clients. If a client requests no strong accents without business justification, you should tell them you are required by law not to discriminate by sending only candidates without an accent. In reality, you would probably be more diplomatic, e.g. "We are happy to send you the most qualified candidate" and note how your worker's skills are a great fit for the opening.
Language issues are just one of the workplace concerns that our team of government experts strives to help you understand. According to the US Census, 37 million people over the age of 18 reported speaking a language other than English as their primary form of communication at home. Of these, 26 percent reported they spoke English not well or not at all. Send your questions to Rich at Watercooler.Counsel@eeoc.gov. He is a former Supervisory Investigator for the Equal Employment Opportunity Commission www.eeoc.gov. Identifying information in the questions may be fictional.