Title VII prohibits discrimination because of “national origin.” The Equal Employment Opportunity Commission (“EEOC”) defines national origin discrimination as the denial of equal employment opportunity because of an individual’s ancestry, place of origin, or because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group. 29 C.F.R. § 1606.1.
“National origin” is a vague concept. The EEOC attempts to resolve some of the uncertainty by recognizing that while one’s “ancestry” is not necessarily synonymous with one’s national origin, where a person was born, the terms overlap as a legal matter. The United States Supreme Court has itself stated that, “the term `national origin’ on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came.”
Hawaii law, HRS Chapter 378, prohibits “ancestry” discrimination, but not national origin discrimination. Like Title VII, the terms “ancestry” and “national origin” as a practical matter overlap under Hawaii law. The state regulations are more expansive in that employers are precluded, unless there is a bona fide occupational qualification, from making pre-employment inquiries and requests for information which tend to disclose the applicant’s ancestry. Under federal law, such inquires are not illegal per se, but may constitute evidence of unlawful discrimination.
Neither Title VII nor Hawai’i Revised Statutes Chapter 378 specifically prohibits discrimination on the basis of a person’s citizenship. However, citizenship requirements that have the effect of discriminating against an individual because of his or her national origin or ancestry are unlawful. Additionally, discriminating against an individual because of a person’s citizenship status is prohibited under the Immigration Reform and Control Act of 1986 (“IRCA”). IRCA prohibits employers with more than three employees from discriminating because of citizenship status.
Pre-Employment Practices: If language skills are relevant to the job, an employer may ask applicants what languages they read, speak, or write fluently. However, according to the Hawaii Civil Rights Commission’s (“HCRC”) Guideline for Pre-Employment Inquiries (Application Forms and Job Interviews), an employer should not make the following pre-employment inquiries: Applicant’s nationality, lineage, ancestry, national origin, descent, or parentage; nationality of applicant’s parent or spouse; maiden name of applicant’s wife or mother; language commonly used by applicant. “What is your mother tongue?; how applicant acquired ability to read, write, or speak a foreign language; whether applicant, parents, or spouse are naturalized or native-born U.S. citizens; birthplace of applicant; birthplace of applicant’s parents, spouse, or other relatives; requirement that applicant submit proof of birth document prior to hiring; “Of what country are you a citizen?; date when applicant, parents or spouse acquired U.S. citizenship; requirement that applicant produce naturalization papers.
National Security Exception: Employment decisions that discriminate against a person’s national origin are not unlawful if made for national security reasons. However, the singling out an individual or group when applying security requirements is unlawful. Employers relying on this exemption should be prepared prove as an affirmative defense that its employment decision was made because of national security requirements imposed by statute or Executive Order.
English-only Rules: Employers frequently pass an “English-only” in the workplace rule without realizing it potentially violates federal and Hawaii law prohibiting national origin/ancestry discrimination. Care must be taken when implementing a policy prohibiting employees from speaking in any language other than English.
The scope of the English-only rule may affect its lawfulness. The EEOC closely scrutinizes English only rules that are applied at all times, as opposed to only at certain times. Both the EEOC and the Hawaii Civil Rights Commission presume that English-only rules applied at all times, including work breaks, are unlawful. On the other hand, English-only rules that apply only at certain times may be justified by business necessity. Proper justifications for English-only rules include the promotion of safety or efficient business operations.
When deciding whether to adopt an English only rule, employers should consider the following: (1) evidence of safety or other business justifications for the rule; (2) likely effectiveness of the rule in meeting its objectives; and (3) English proficiency of workers affected by the rule.
EEOC guidelines list the following examples where business necessity justifies an English only policy: For communications with customers, coworkers, or supervisors who only speak English; in emergencies or other situations in which workers must speak a common language to promote safety; for cooperative work assignments in which the English only rule is needed to promote efficiency; to enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.
When enforcing English-only rules, employers should be sure to give employees fair notice of the rule and consequences for any violation. Sometimes, employers may need to give notice in English and in the other spoken languages in the workplace. Disciplining an employee for violating the rule without proper notice is considered evidence of national origin discrimination under both federal and Hawaii law.
Foreign Accents: Discrimination because of a person’s accent may be unlawful, unless the employer can establish a legitimate, nondiscriminatory reason. An accent that interferes materially with job performance justifies an adverse employment decision based on the accent. However, if an individual can communicate well enough to perform all functions required by the job, then discrimination because of a person’s accent may not be justified.
There is a difference between a merely discernable accent and one that renders the individual unable to perform the job’s verbal communication requirements. Positions which may require effective English oral communication include teaching, customer service, and telemarketing.
For instance, in the seminal case from Hawaii, Fragrante v. City & County of Honolulu, (1989), a Filipino man applied for but was not selected for a clerk position with the City & County of Honolulu’s Division of Motor Vehicles and Licensing. The position required some verbal communication over the telephone and in person. The interviewers believed that the applicant’s accent was “difficult to understand” and “would be difficult to understand over the telephone”. The court found that the City did not discriminate against the applicant because of his national origin but rather decided not to hire him because of his accent’s deleterious effect on his ability to verbally communicate.