HR question of the month

By Federated Insurance

Required to Hire Non-English Speaking Candidates?

We have a person applying who is very persistent about getting an interview for a position in our shop. He does not speak English and comes in each time with an interpreter. Can we choose not to interview him because he does not speak English? We also require all employees who work in our cabinet shop to pass a basic tape measure reading test. He said he would be back later with a different interpreter to take the test. We are a cabinet shop and don't feel it is safe to have someone who cannot understand English out working on the floor. Can we simply flat out tell them that we do not hire non-English speaking candidates or is this against the EEOC or some other sort of discrimination?

Answer: Ultimately, the employer has some latitude relative to requiring English language proficiency if there are legitimate business and/or safety reasons for such fluency, which the employer can and should state at the outset are necessary for the position sought. Keep in mind as well that the employer must make similar inquiries of all candidates for the same position to avoid discrimination concerns. This means that any appropriate pre-employment English fluency requirement and/or inquiry should be disclosed to and/or asked of ALL candidates for the same position, and not just of those who may not appear as though they speak English as their primary language.

Employers do, however, have to tread lightly when seeking to impose employment-related language proficiency requirements to avoid inviting claims of national origin discrimination. Federal and state employment discrimination laws prohibit discrimination on the basis of national origin. The federal Equal Employment Opportunity Commission (EEOC) recognizes, however, that "Employers may have legitimate business reasons for basing employment decisions on linguistic characteristics. Because linguistic characteristics are closely associated with national origin, it is important to carefully scrutinize employment decisions that are based on language to ensure that they do not violate Title VII."

If an employer wants to require applicants and/or employees to understand and speak English, such rules are permitted only where they are truly justified by "business necessity," Examples include where English language fluency is needed for an employee to operate safely or efficiently; or to enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers; and/or in emergency or other situations in which workers must speak a common language to promote safety. The EEOC expressly states:

"Generally an English fluency or English proficiency requirement is permissible only if required for the effective performance of the position for which it is imposed. An individual's lack of fluency in English may interfere with job performance in some circumstances, but not in others. ... Because the degree of fluency that may be lawfully required varies from one position to the next, employers are advised to assess the level of fluency required for a job on a case-by-case basis. Applying uniform fluency requirements to a broad range of dissimilar positions or requiring a greater degree of fluency than is necessary for a position may result in a violation of Title VII."

An inquiry that requires applicants to indicate their ability to speak, read and/or write English is not unlawful in all cases, but should only be applied if there is a legitimate business necessity or safety concern that requires that employees hired into such positions communicate in that language. If there is, the employer can inquire of applicants whether they can speak, read, write and understand English for this purpose during the hiring process, and can disqualify those who cannot do so at the level required for the particular position they seek. Here you indicate that the employer does not "feel it is safe to have someone who cannot understand English to be out on the working floor," but it is unclear why the employer "feels" this way. If there are legitimate justifications (i.e., if the supervisor only speaks English and employees must be able to understand him/her, and/or employees must speak a common language to promote safety, etc.), then as noted the employer is within its rights to make English proficiency a requirement of positions on the working floor. To avoid discrimination concerns, the employer would do well to frame the qualification from the standpoint of language fluency or proficiency on a case by case (or position by position) basis, for specific and legitimate reasons, versus establishing and implementing a wholesale rule that the employer simply does "not hire non-English speaking candidates."

As well, if the employer requires that all employees who work in the cabinet shop are able "to pass a basic tape measure test," then presumably this is a test given post-hire (i.e., to "all employees"). We do not recommend that the employer single out the subject candidate for this test on a pre-hire basis if all others are required to submit to the test once they are already hired as employees. If, however, this is something the employer makes part of the pre-hire process so that all applicants for cabinet shop positions can demonstrate their skills in performing an essential function of the job (that is, reading a tape measure), then to the extent any candidate cannot do so, we are not aware that the employer must proceed with further consideration of that candidate. Although it does not appear to be the issue here, if a candidate is disabled and requires reasonable accommodation to perform an essential job function (such as reading the tape measure), the employer must explore whether accommodation can be provided without undue hardship before disqualifying him or her, see Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act for more information (note that there is no duty of which we are aware to provide reasonable accommodation to a non-disabled, non-English speaking employee who seeks to have an interpreter present to translate).

There is excellent guidance for employers relative to these issues. particularly section V titled "Language Issues" (and subsection B, "Fluency Requirements". We recommend that you review it for more information.

Want to know more? Click here to listen to our podcast on non-English speaking candidates and discrimination.

The Question of the Month is provided by Enquiron, a company wholly independent from Federated Insurance, which does not warrant the accuracy, adequacy or completeness of the information herein. Consult with your independent professional advisors regarding your specific facts and circumstances.