Assume that I am an employer in the restaurant business. I live in an area where there is a large immigrant population. Assume further that anyone who applied for a job in my establishment is here legally. Can I, as an employer, legally refuse to hire someone who does not speak/understand English well?
I would think so, as long as you can explain why it is relevant to job performance.
What do you mean by “speak/understand English well”? Do you mean use English with enough fluency to communicate with customers and with others in the restaurant? In that case, I believe that you can require that skill. Do you mean speak English like a native speaker, without a foreign accent? I don’t think that you can require that, because by requiring thaty yoy would be discriminating against immigrants from non-English-speaking backgrounds.
I am not a lawyer, and laws vary from place to place. I used to do a lot of hiring, however, and the general guidelines I was given state that you can legally consider anything that affects the person’s ability to do the job.
If your restaurant is located in the U.S., you can require that the prospective employee speaks English well enough to communicate with the customers and the kitchen staff. If the immigrant population in your area mostly speaks the same (non-English) language, it is also acceptable to give hiring preference to someone who is bilingual, speaking both that language and English.
No matter what you do, you can get sued for it. All it takes is one pissed-off person who didn’t get the job, and one lawyer willing to accept the case. The suit may not stand up in court, but you’d still be out the costs of defending it.
You can require someone to have a certain competence in English as long as it’s a bona fide job requirement. If it’s a means by which you (that is, the employer) can discriminate against non-native English speakers, or against people who speak with an accent, then you are discriminating against national origin, which is illegal.
Yeah, that’s what I’m trying to figure out - if it would be a bona fide requirement for the job. Technically, I can’t really see why it would be for most restaurant positions - cooking, dishwashing, bussing tables and that sort of thing really don’t REQUIRE speech at all, if you think about it. Certainly it would make everyone’s life easier if everyone on the job could communicate clearly to one another, but I can’t work out where that would be a REQUIREMENT.
For the record, I speak enough Spanish to get by in a restaurant setting - I worked with a huge number of Spanish-speaking co-workers and frankly, it became easier for me to trot out my high school Spanish than it would be for them to try to learn English. The area where I live is heavily Hispanic, so I know a good proportion of the people who would apply for jobs would NOT be native English speakers. I would want them to be reasonably functional in English - by “speaking and understanding well” I mean able to communicate without any major mishaps with people who DON’T speak Spanish. If they speak NO English, I can still get by, but it could make things difficult for those who have no knowledge of Spanish, you know?
Well, I’d have to disagree, to some extent. At least in the restaurants where I worked, cooks, dishwashers, and bussers still had to communicate with their co-workers, many of whom only spoke English. Bussers also have to communicate with customers.
For the back-of-the-house staff in a restaurant, I’d say you could certainly make the English requirement less stringent than you would want for the waiters and reservationists. You could consider it a bona fide requirement that those people speak fluent English. You could make it a requirement that back-of-the-house staff be able to understand written and/or spoken English but not necessarily be able to speak it fluently themselves. You could decide you don’t care if cooks or dishwashers speak any English whatsoever because you feel you have enough other bilingual staff on hand at all times who can translate immediately and fluently. (That is an extremely difficult skill to learn, by the way - even for people fluent in two languages.) If you feel the inconveniences could be dealt with, you could hire people who don’t speak any English at all.
As to how much of a “requirement” you want it to be: I work in an office. I could certainly hire someone who only speaks French. We don’t really have any visitors. There are no clients or customers. This French person could file all day or lick envelopes. But it sure would be a pain the ass to have to translate everything for her, and it would be a pain to know that she could never answer the phone or greet a guest or order supplies or fill in for me for 5 minutes. That is why we have a “requirement” that everyone here speak fluent English.
Well, gee, what does “national origin” mean legally? If the guy’s a born-and-bred American that just can’t speak English all that well, then that’s not national origin. I think “race” is supposed to mean what you’re calling national origin. In this case, you’re just not hiring him 'cos he doesn’t speak standard English, and I think that’s not a protected class – although given our courts these days, who knows.
I have no problem in our job description that the applicant must be able to communicate (oral and written - the job requires reports to be sent to consumers, relatives and other governmental agencies) in english; and then express that bilingual ability is a plus. Descrimination is avoided when you are expecting a level of proficiency of a certain ability relevant to a job/task, not by judging the person who displays the ability or lack of.
National origin is not the same as race. The protected classes under federal employment discrimination laws: race, sex, color, religion, national origin, age and disability. National origin means the country where someone comes from or their nationality. Race means race. You can be a Hispanic born in Israel and someone won’t hire you because you’re from Israel, not because you’re Hispanic - then they are discriminating based on national origin. If they won’t hire you because you’re Hispanic but they don’t care where you were born or what nationality you are, then they are discriminating based on race.
If someone is a born-and-bred “American” and can’t speak English well enough to be understood to a reasonable degree, and a requirement of the job is that the employee be able to speak English to a reasonable degree, then you are free to not hire him.
In this context national origin refers to “birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.”
Here is the US EEOC’s fact sheet
http://www.eeoc.gov/facts/fs-nator.html
Here’s what it says about requiring English fluency
“Requiring employees or applicants to be fluent in English may violate Title VII if the rule is adopted to exclude individuals of a particular national origin and is not related to job performance.”