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The AR Group

ARE YOU SPEAKING MY LANGUAGE?

By Jeanette Eirich Review of the current job landscape evidences that a number of good and relatively high paying jobs are available in a market where unemployment is still close to historic highs. Some employers have seen the unemployment trend as an opportunity to attract even more highly skilled employees, including hiring of individuals with foreign language fluency. Of course, employers are generally free to amend the hiring standards to meet the needs of their business to the extent that those standards are unbiased and lawful. But may an employer require a foreign language skill as part of the job requirement? Not surprisingly, the answer isn?t as simple as one might think it should be, and ultimately, it depends on a variety of factors. Many job requirements, including language skills, may have a disproportionate effect on a racial or ethnic group. Such an impact, whether intentional or not, can open a business up to potential workplace discrimination claims. Rules requiring foreign language skills are similar to rules regarding English only job requirements. Because either requirement could be equally discriminatory, when challenged, employers need to be able to establish that a foreign language requirement, like an English only requirement, was implemented for legitimate non-discriminatory reasons and is a “business necessity”. Generally, a business necessity means a rule or requirement that is essential for the business to operate safely and effectively achieve the company’s goals and objectives. Business necessity is usually a defense for the employer in discrimination claims. For example, if your business has a large clientele that speaks primarily Spanish or Korean, requiring employees who interact with those customers to be able to effectively communicate would likely be a sufficient business necessity. However, to the extent that not all employees would need to interact with such customers, imposition of a ubiquitous language requirement would be improper since it does not serve a business necessity and would likely be viewed as discriminatory. While the Equal Employment Opportunity Commission (EEOC) does not require that employees be paid additional compensation for work performed in a foreign language, bear in mind that in many industries, foreign language skilled workers command higher pay. SMART TIP: If you are considering implementing a foreign language or English only policy in your workplace, we encourage you to consult with legal or business professionals to ensure that your business is protected from discrimination claims based on such rules.