By David Chidlaw and  Ruben Escalante

In November 2007, the Equal Employment Opportunity Commission ("EEOC") filed a lawsuit against the Salvation Army because the Salvation Army instituted a policy which required its employees to learn English within a year or else face termination. The EEOC’s stance against "language-based" discrimination, is founded upon Title VII’s prohibition against "national origin" discrimination.  The implications of such a stance are widespread, given the labor force continues to grow more ethically diverse and employers try to find the proper balance between employee, customer, and management relations. The purpose of this brief article is to provide an overview of the EEOC’s current approach to "language-based" discrimination.

First, the EEOC cautions employers to "carefully scrutinize" policies based on the accent of an employee.   Specifically, an employment decision based on the accent of an employee is generally permissible only if the employee’s accent materially interferes with the employee’s ability to perform his job duties. For instance, in the case Fragante v. City and County of Honolulu, an applicant was not selected for a position because of his perceived inability to effectively communicate due to his "heavy Filipino accent." The court found that the applicant was passed over because of the "deleterious" effect of his Filipino accent on his ability to communicate orally, not merely because he had such an accent. 

Second, the EEOC cautions employers to avoid fluency requirements, both English and foreign language fluency requirements, that apply uniformly to the entire workforce. The EEOC will permit such a requirement only where it is required for the "effective performance of the position for which it is imposed."   For example, in the case Sheih v. Lyng, the plaintiff was demoted because he had serious difficulties successfully preparing written manuscripts. One of the central requirements of the plaintiff’s position was that he publish such manuscripts. The court held that even though the plaintiff’s weaknesses with the English language may have contributed to his difficulties, because effective communication skills are indispensable to successful writing, the defendant was not found to have unlawfully discriminated against the plaintiff.

Finally, the EEOC permits employers to institute policies which prohibit employees from using foreign languages, but only in limited circumstances.  Needless to say, such a policy cannot be adopted for a discriminatory purpose. Moreover, such a policy must not discriminate amongst the languages which cannot be spoken. For instance, an employer cannot adopt a "No Spanish" policy. Even then, however, the EEOC will only permit such a policy where it is justified by "business necessity" and affected employees are notified.

As with any employment decision or policy which could potentially be perceived as discriminatory, it is best to seek the guidance of experienced counsel.   Sheppard Mullin’s Hispanic/Latino Business Practice Group’s Labor and Employment attorneys have extensive experience in counseling employers whose workforces are traditionally ethnically diverse and can help guide your business through these difficult issues. 

David Chidlaw is a partner in Sheppard Mullin’s Labor and Employment group his practice focuses on immigration issues. Mr. Chidlaw is located in the Firm’s San Diego office and can be reached a Ruben Escalante is an associate in Sheppard Mullin’s Labor and Employment group. Mr. Escalante is located in the Firm’s Orange County office and can be reached at