Oct 28

Language and Accent Discrimination: Some Straight Talk

The Tower of Babel by Pieter Bruegel the Elder (1563).

The Tower of Babel by Pieter Bruegel the Elder (1563).

Los Angeles is home to 224 languages. You don’t have to speak any of them in an interview to fall victim to discrimination. Many employers discriminate against job applicants just based on their accent. Even worse, many employers use a job applicant’s accent or primary language as a pretext to discriminate against him based on his national origin. The EEOC reports that complaints about national origin discrimination jumped 76% from 1997 to 2011. Evidently, employers are interpreting the law to mean they can always discriminate against someone based on his language or accent. If that’s what employers think the law says, they don’t understand plain English. California law strictly regulates English-only policies and similar restrictions in the workplace.

English-Only Policies and Other Language Restrictions

No need to talk past each other.

California law is loud and clear: language restrictions are almost never justifiable.

English-only policies in the workplace are highly unlikely to withstand a legal challenge in California. The Fair Employment & Housing Act (FEHA) generally prohibits an employer who regularly employs five or more employees from adopting or enforcing any policy that limits or prohibits the use of any language in the workplace. FEHA does, however, create a limited exception to that rule where: (1) the employer has a “business necessity” that justifies the language restriction; and (2) the employer notifies his employees of the circumstances and the time when they must observe the language restriction and notifies them of the consequences of violating the language restriction.1 

The “business necessity” test requires an employer to jump over two high hurdles: (1) the language restriction must be necessary to, and effectively promote, the safe and efficient operation of the business; and (2) no alternative to the restriction would be as safe and efficient and have a less discriminatory impact.2 For example, a restaurant can’t ban cooks from speaking to each other in Spanish at work because the ban would make the kitchen less safe and less efficient. In fact, the restaurant might not even be able to ban cooks from speaking Spanish to a manager who spoke only English if a bilingual cook could act as a go-between. The “business necessity” test is so tough that the only language restriction that is likely to survive is a ban on Pig Latin. 

Accent Discrimination

Many employers express concerns that someone’s accent might interfere with his ability to do his job. Like language and national origin, however, accent and national origin go hand in hand.3 The concern that someone’s accent might interfere with his job is often a pretext for an employer to refuse to hire or promote that person based on his national origin.4 For that reason, a court won’t allow an employer to claim, without evidence, that a person’s inability to communicate, rather than his national origin, motivated the employer’s refusal to hire or promote him. The employer would have to produce evidence that the person’s accent was so thick that it truly would interfere with his job performance.5

Even if an employee or job applicant speaks the King’s English, an employer can discriminate against him based on his accent if it’s a domestic one. For example, an employer can freely discriminate against him because he speaks with a Southern accent, a Minnesota accent, or any other American accent, even if he’s a native English-speaker and has a Ph.D. in English. The rationale for this rule is that one’s birth or origin in a particular state or region within the U.S. isn’t a national origin at all (generally speaking).6 Logically, an employer who dislikes Southerners and/or the Southern accent can lawfully discriminate against a foreign-born person for speaking with a Southern accent.

  1. Gov. Code §12951(a). 

  2. Gov. Code §12951(b). 

  3. Fragante v. City and County of Honolulu, 888 F.2d 591, 596 (9th Cir. 1989). 

  4. Id

  5. Raad v. Fairbanks North Star Borough School Dist., 323 F.3d 1185, 1195 (9th Cir. 2003). 

  6. See, e.g., Storey v. Burns International Security Services, 390 F. 3d 760 (3rd Cir. 2004), Thomas v. East Orange Bd. of Educ., 998 F.Supp.2d 338, 349 (D. N.J. 2014); Chaplin v. Du Pont Advance Fiber Systems, 293 F.Supp.2d 622 (E.D. Va. 2003); Williams v. Frank, 757 F.Supp. 112, 121 (1991). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.