www.aclunc.org/language/lang-report.html
ACLU of Northern California 1663 Mission Street, Suite 460 San Francisco, CA 94103 (415) 621-2493 Language Rights What is language discrimination ? Language discrimination means treating someone differently solely because of his or her native language or other characteristics of speech. On the job, for example, an employee may be subjected to language discrimination if the workplace has a "speak-English-only" policy, especially if her primary language is not English. An employee may also be the victim of language discrimination if she is treated less favorably than other employees because she speaks English with an accent, or if she is told she does not qualify for a position because she does not speak English well enough. But language discrimination doesn't only happen on the job. For example, a person may be denied access to businesses or government services because he or she does not speak English. Although the law in this area is still developing, there are many court decisions which have found language discrimination to be a violation of people's constitutional rights and civil rights laws. Some courts have found language discrimination to be the same as discrimination based on race or national origin. As early as 1926, the United States Supreme Court ruled that a requirement that accounting records be kept in English or local dialects but not Chinese violated the Constitution (Yu Cong Eng v Trinidad). In 1974, the Supreme Court ruled that failure to provide bilingual instruction for public school students who did not speak English effectively denied them equal access to educational opportunities, and thus constituted national origin discrimination under Title VI of the Civil Rights Act of 1964, (Lau v Nichols). And, as recently as 1991, the court ruled that in some cases, language-based discrimination should be treated as race discrimination (Hernandez v New York). Other courts have also protected the right of language minority groups to be free from discrimination. Those courts have reasoned that even if language and national origin were not synonymous, language-based discrimination disproportionately harms national origin minorities and can, for instance, violate Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination because of national origin. These cases include rulings against accent discrimination (Carino v Univ. of Regents, and a finding from a Texas court that a "rule that Spanish cannot be spoken on the job obviously has a disparate impact upon Mexican-American employees". In addition to court decisions, there are also federal and state laws prohibiting language discrimination. The Guidelines on Discrimination Because of National Origin, published by the Equal Employment Opportunity Commission (EEOC) to interpret Title VII of the federal Civil Rights Act, prohibit English-only rules, accent discrimination, and other forms of language discrimination without a strong business justification. The California Fair Employment and Housing Act also bans practices that disproportionately impact minority workers. There are other laws which may also apply to language discrimination in employment, by business and by government. On the federal level, these include the federal Civil Rights Act of 1866, which bans racial discrimination in the making and enforcement of contracts, including employment contracts, and Title VI of the Civil Rights Act of 1964 which prohibits race and national origin discrimination by recipients of federal funds, such as universities and police departments. In California, we also have the Unruh Civil Rights Act, which bars business establishments and places of public accommodation from discriminating on race or other arbitrary grounds and the Unfair Practices Act, which prohibits unfair and unlawful business practices. These laws make it illegal for employers to discriminate against an employee because of his or her national origin. "National origin" generally refers to the country that a person, or that person's ancestors, came from. The primary or ancestral language of a person is closely related to her ethnicity and national origin. Therefore, discrimination against that language has the same effect as national origin discrimination, just as discrimination based on surname or color goes to one's race or national origin. The US Equal Employment Opportunity Commission (EEOC) is the federal government agency responsible for interpreting and enforcing Title VII of the Civil Rights Act. The EEOC has long held that national origin discrimination includes "the denial of equal employment opportunity because .
Because of subtle, unconsciously held stereotypes, an employer may assume, for instance, that a job applicant with a Hispanic accent is less qualified than one with an British or French accent. The EEOC generally views "speak-English-only" policies as being illegal under the Civil Rights Act unless justified by business necessity. However, a recent case in California refused to follow the EEOC Guidelines on these policies, instead holding that English-only rules must be evaluated on a case-by-case basis. Under this ruling, which applies to California and eight other western states, the court stated that an employee may challenge a "speak-English-only" policy in the workplace under federal law if: 1) the rule is applied to employees who speak no English or who have difficulty speaking English; or 2) the policy creates, or is part of, a work environment that is hostile toward national origin minority employees. Examples of a hostile work environment would include, for instance, the rule being applied in a very harsh manner, or a pattern of harassment in addition to the English-only rule. If an employee is able to show that either of those conditions applies, then the employer must show a "business necessity" for the policy -- that is, that the rule is "necessary to safe and efficient job performance," and that there are no other alternatives which would serve the employer's legitimate interests with a less discriminatory effect. Unless an employer can show that the work in question genuinely requires that communications between employees be in English (as opposed to any other language), that all workers must be able to understand all communications between all other workers, and that the consequences of a lapse in communication are serious, it is unlikely that the standard can be satisfied. According to the EEOC Compliance Manual, the "business necessity" standard would apply, for example, to a team of workers on an oil drilling rig who are responsible for its operation and where constant communication understood by everyone is required. The business necessity standard would also apply to operating room medical staff who are performing surgery. On the other hand, forcing co-workers in a kitchen or on an assembly line to speak only English while conversing with each other simply because other workers are uncomfortable, or because customers dislike hearing foreign languages, is not a "business necessity." In addition, the employer must also meet the additional requirement that a speak-English-only rule is the least discriminatory means of addressing any bona fide business concerns -- and this is hard to do. If an employer imposes these kind of rules because of tensions between different ethnic groups of workers, for example, the rules may actually worsen the situation by making language minority workers feel demeaned, humiliated, and resentful. There are far more effective and equitable ways to defuse personal disputes and tensions, which typically run deeper than any objections to the use of a particular language. Rather than imposing discriminatory rules, employers should bring in cross-cultural sensitivity training or other, more direct means of addressing the underlying interpersonal problems. Though the ruling in Garcia allowed some English-only restrictions at worksites, Title VII of the Civil Rights Act remains even stronger in states outside California and several other western states. There, the EEOC Guideline, which presumes that "speak-English-only" workplace rules advers...
|
http://csua.com/feed/