Back to the Basics: What is National Origin Discrimination?

Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate, among other protected categories, based on national origin. National origin discrimination means treating people, namely job applicants or employees, adversely because of their country of origin, because of ethnicity or accent, or because they appear to be part of a certain ethnic group, whether or not this is actually the case. National origin discrimination also includes harassment of a person because of the national origin of their spouse or other person with whom they associate. 

What Does Accent Have to do With National Origin Discrimination? 

Those who learn a second language tend to incorporate some of the sounds of their native tongue when they speak the new one.  This is what makes someone speak a language with an “accent.” Often, these distinctions in grammar and pronunciation are closely related to the individual’s national origin.  Generally, it is illegal for an employer to discriminate based on an accent alone, but businesses can legally make hiring decisions based on an applicant’s accent if their tone and dialect significantly interferes with that person’s ability to perform job responsibilities. 

For instance, a company might reassign an employee with a heavy accent from an outward facing “help desk” position to a job that does not require as much direct customer interaction. Certain criteria would have to be met for such a transfer to be aboveboard, such as customers complaining about their ability to converse or comprehend the employee. There must be demonstrable evidence that the accent hindered that employee’s ability to perform the job he or she was hired to do. At the end of the day, the focus becomes bona fide occupational qualifications.  When reassigning workers from one position to another, employers should act with caution regarding a resulting pay decrease. Depending on the circumstances, this could be perceived as a discriminatory action.

Can an Employer Impose Fluency and Language Requirements and Restrictions?

At times, an employer can require certain fluency or language requirements when seeking to hire for a specific position. For example, if the business operates in a country where the common language is Portuguese, searching for and hiring employees that are fluent in that language would be critical for business success.  Again, the focus is bona fide occupational qualifications.

On the flip side, if proven to be necessary to the business, an employer may prohibit on-duty employees from conversing in a language other than the one commonly used to conduct business.  Expectations must be clearly stated, should include exactly when the employees have to speak the primary language, and explain the consequences of breaking the rule. Like all workplace policies, the rule must be enforced across the board – for all employees and at all times.

Contact an Employment Law Attorney

As your business grows and becomes more diverse, it is important to develop policies and practices that prevent national origin discrimination.  To discuss these matters with a skilled employment lawyer, contact Simon | Paschal, PLLC today. 

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