National Origin Discrimination in New Jersey Based on English Only Policies

Given the increasing number of immigrants in the workplace, the volume of discrimination claims based on national origin has risen significantly.  There were over 11,000 charges filed with the EEOC based on national origin discrimination during 2009, which represents more than a 50 percent increase from the previous year.

This rise in discrimination cases based on national origin is largely attributable to employer imposed English-only policies.  The law prohibits employment discrimination based on national origin under the New Jersey Law Against Discrimination (LAD) and Title VII.

When employment decisions are based on factors like ancestry, country of origin, linguistic traits, culture, ethnic surnames or similar characteristics, the affected employee may have the basis for an LAD claim.  This type of claim may include employers that disqualify job applicants based on having an ethnic surname or refuse to permit a non-native speaker with an accent from interacting with the public.

When do English only work rules constitute unlawful discrimination?

An English-only work rule may be the basis for a national origin discrimination claim unless the employer can show it is supported by business necessity.  If an employer imposes an English-only work rule, the employer must specify when English must be spoken, such as in the presence of patrons and any consequences for violating the policy.  If an employer requires English to be spoken constantly, including during break periods, this rule is probably too broad.  Further, when an employer prohibits speaking one language, such as Spanish but permits the use of other languages, this disparate treatment may also be actionable.

The EEOC has justified this policy based on the rationale that a person’s primary language is a fundamental characteristic of his or her national origin.  When an employer prohibits speaking in one’s native tongue, this may promote an environment of inferiority, isolation, and intimidation that could perpetuate a discriminatory work environment.

Imposition of English fluency requirements by New Jersey employers

Employment policies that mandate a certain level of English proficiency also may form the basis for a national origin discrimination claim in New Jersey.  The degree of fluency that may be required depends on the specific needs of the job.  Employers that have standard fluency requirements across a broad range of positions may be determined to have engaged in employment discrimination.

Employment discrimination cases based on mandatory rules regarding the use of English or minimum levels of proficiency are complex because these policies are permissible under specific circumstances.  Cases of national origin discrimination require careful analysis of the requirements of the position and the scope and intrusiveness of the policy.

Neil H. Deutsch On G+