Bilingualism and Equality: Title VII Claims for Language Discrimination in the Workplace
Linguistic diversity is a fact of contemporary American life. Nearly one in five Americans speak a language other than English in the home, and influxes of immigrants have been a constant feature of American history. The multiplicity of languages in American society has touched nearly all aspects of American culture, and specifically has added new and important challenges to the American workplace. Chief among these new concerns are the growing number of legal claims centered around language discrimination in the workplace. The common vehicle for these claims has been Title VII, and there is considerable support in the academic literature for the proposition that Title VII should be read to confer a right on bilingual employees to use a preferred language in the workplace when English is not necessitated by business or safety concerns.
This Article examines the usefulness of Title WI as a framework to address the growing number of language discrimination claims, and concludes that Title VII is an awkwardly adapted vehicle to address these types of workplace concerns. Title VII is based on a civil rights model that promotes even-handed treatment of employees, and does so through methods of proof that reflect a historically informed skepticism about an employer’s motivations when dealing with a protected class of persons. Workplace language rules, in contrast, rarely involve stereotypes and normally are pertinent to an employer’s operations. To confer a right to speak in a preferred language goes beyond Title VII’s mandate of equal treatment and amounts to the creation of positive rights that are unconnected with equality in the workplace.
Part I of this Article introduces the reader to the nature of workplace language claims and their judicial disposition. Part II surveys the language competencies of Americans, relying primarily on results reported in the in the 2000 Census. Results indicate a high degree of English proficiency in the United States, indicating that the key issue in language policy is a bilingual’s desire to speak in a native tongue, rather than providing for masses of persons who can’t speak English. Part III examines the anti-discrimination concepts which underlie Title VII, finding that these concepts strongly embody the “civil rights model” which regards characteristics such as race and gender as improper bases for workplace decisionmaking. Part IV asks whether the civil rights model embodied in Title VII works with language discrimination claims, concluding that it does not. Language is fundamentally different from race, ethnicity, gender, or even national origin. The characteristics of mutability and relevance take language discrimination claims outside the realm of Title VI’s civil rights model. Part V offers concluding remarks.