June 8, 2006 (Original publish date) • By Dennis Beaver
“I am interviewing applicants for a sales position in my Eureka office. Now, you must understand that I am African-American originally from the Eastern part of our country and have lived in California for many years. My parents believed in education, specifically in good language skills. When I came out to California, people of my own race accused me of “sounding white,” which was a real insult and put down to education. I believe to succeed in life, good communications skills are needed If you sound illiterate, your job chances are lessened.
“Can I reject applicants based on the fact that they butcher the English language? When I hear such things as “axed” instead of “asked,” this tells me the applicant seems to consider there is something wonderful about sounding illiterate, no matter what their educational background. And this has nothing to do with race. I get applicants of all races and backgrounds whose command of English is so poor as to be an embarrassment. That is not the image I want my sales staff to present the public.
“May I legally refuse to hire people who sound like their life has been spent listening to rap music or hanging out in some back-woods redneck bar?”
English only? Whose English?
Surprisingly, I have received many similar inquires over the past few years, all from minorities or immigrants to this country very upset with the way the English language was being used on the job, or by job applicants. These were people who learned to speak grammatically correct English with excellent pronunciation — they were color and ethnicity neutral. If you closed your eyes you would have no idea what their linguistic, cultural or racial background was. They were proud of their language skills, and truly had respect for the English language.
California has the most diverse population of any state. The Civil Rights Act of 1964, in addition to state law, protects individuals from employment discrimination on the basis of national origin, race, color, religion and sex. We cannot deny someone employment because of “linguistic characteristics common to a specific group,” according to the law.
In practical terms, “this means that you cannot deny a qualified applicant from Asia a job because that person has some difficulty in pronouncing ‘R’ or ‘L’ or makes other mistakes in English, as long as they are able to be understood, in most employment situations,” according to Chris Ho, an attorney with the Employment Law Center in San Francisco. “Language discrimination is every much the same thing as racial discrimination, according to some courts — but I have to admit, this is a developing area of the law,” attorney Ho stressed.
He, by the way, is a Chinese-American who does not speak a word of Chinese. I found that to be very interesting during my long and pleasant conversation with him.
“I understand that our diverse environment creates a real challenge for the employer who would like to have a staff composed of competent English speakers. The fact is that unless the job requires proficiency –fluency or good written skills –then an employer will be obligated to hire people who may have very limited abilities in English. If you fail to do so, you could get sued,” Attorney Ho warns.
He ought to know, as his organization — backed by the ACLU — is currently in a six-year battle with a Fresno company whose “crime” was that they wanted workers who had “minimal English language skills,” I learned from the Fresno law firm handling the case.
“All the employer wanted was people who could communicate with each other in English, as they came from many different countries. They wanted their employees to be able to read warning signs — and found that many of them were illiterate in their own native language. It has and continues to be an amazing fight over something that most employers would consider to be logical — the right to require your employees be able to understand each other, avoid being injured, and communicate with management in English,” one of the firms paralegals told me.
When can English be required?
“If you can show a business necessity for a ‘Speak-English-Only’ policy, and make this clear to all applicants, in theory this would be O.K., but you must also show there is no alternative practice to the policy that would achieve the business goals just as effectively,” attorney Ho explains.
This means that a group of taxpayer paid lawyers — who speak English very well, who “ask” questions, and have proven my reader’s statement true that good language skills are what helps you in life — will sue the pants off of an employer who wants literate employees. It may be the law, but this stinks, in my opinion.
Practical advice to my reader
“Your reader needs to be careful,” cautioned one attorney I spoke to. “It is a close call, even if he and the applicant are both African-American. Your reader might address this issue of pronunciation and tell the applicant that correct grammar is required. As this is a sales position, and employees will be meeting the general public, much higher standards of language skills can be legitimately required.”
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.