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By: Amanda K. Hall
In today’s global society, many businesses are finding that their customers are bilingual or do not speak English. Therefore, it is becoming more and more common for employers to require their employees to be bilingual or speak another language in order to be qualified for their job. Given its geographic location, this issue is particularly relevant to employers in the Eleventh Circuit. This blog examines the question of whether such requirements may give rise to a claim of national origin discrimination under Title VII of the Civil Rights Act of 1964.
The former Fifth Circuit, whose opinions are binding on the Eleventh Circuit, held, in the context of determining whether an English-only policy violated Title VII, that “[n]either the statute [Title VII] nor common understanding equates national origin with the language that one chooses to speak.” The former Fifth Circuit noted, however, that “[l]anguage may be used as a covert basis for national origin discrimination.”
A court in the Southern District of Florida stated that a policy requiring employees to speak a language other than English could create problems in that it “works to eliminate American-born applicants who speak only English.” In dicta, that court noted that such a policy may be suspect “where it is geared primarily to benefit employees, rather than customers, who are not proficient in English.”
A bilingual requirement could be challenged as direct or circumstantial evidence of discrimination. For example, in one case, anon-Brazilian employee of the Brazilian air carrier Varig brought a failure to promote claim against Varig alleging that she was discriminated against on the basis of her national origin when Varig refused to promote her to a cargo sales representative position that had a Portuguese-language requirement. The plaintiff claimed that the requirement constituted both direct and circumstantial evidence of national origin discrimination.
Rejecting the plaintiff’s claim that the requirement, as posted, was direct evidence of national origin discrimination, the court noted that the Eleventh Circuit has held that direct evidence of discrimination is evidence that “if believed, proves [the[ existence of a fact without inference or presumption.” The court then held that the policy could not constitute direct evidence of discrimination because it required at least two inferences: (1) “an inference that the requirement was actually intended to limit the applicant pool to only native-born speakers of a particular country, rather than to include all those who speak the language in other countries or who learned the language regardless of their place of birth” and (2) “it requires the fact finder to conclude that the language requirement has no legitimate purpose other than to weed out candidates based on national origin.”
The court then analyzed the language requirement in accordance with the McDonnell Douglas framework for claims involving circumstantial evidence of discrimination. After finding it “unlikely” that the plaintiff could establish a prima facie case of national origin discrimination because she could not show that she was qualified for the promotion, the court went on to conclude that, even if the plaintiff could establish a prima facie case, she could not rebut Varig’s legitimate, non-discriminatory reason for the policy — namely that Varig did business with many Brazilian companies whose employees only spoke Portuguese and that the employee hired for the position would need to communicate in Portuguese with personnel at Varig’s head office in Brazil. Citing the well-known proposition that an employee may not quarrel with an employer’s business judgment, the court held that “[t]he question for this court is not whether Portuguese fluency and literacy were actually required for the position, but rather whether Varig’s stated reason for including the requirement is an honest explanation of its decision.” As another court in the Eleventh Circuit stated, “[t]he wisdom of defendant’s decision to make Spanish fluency a skill requirement is not properly before this court.”