Is it legal for employers to hire only native speakers?

Question

I recently learned that there are some companies (for instance, certain editing, writing, or translation services) that explicitly refuse to hire non-native English speakers for certain positions a priori.

Obviously, a person's language abilities are both a relevant qualification for certain jobs, which tends to be a permissible and even desirable form of discrimination, and this is highly correlated with whether they have been speaking a language since childhood or not. However, it is self-evidently not determinative of an applicant's ability to perform the duties of a job, as any "X speaking perfect Y" search will demonstrate. It also seems like the sort of policy that might run into problems due to being considered de facto discrimination against an individual based on their membership in any of various protected classes. Therefore, is it legal for a company to announce beforehand that they will not hire non-native speakers even if they demonstrate all other qualifications for the job, or to tell an applicant who has passed any preliminary steps that they will not hire them because they are not a native speaker?

I am interested in answers for the United States of America and the European Union, to the extent that transnational norms around this sort of thing exist in the latter.

Answer 1

Employment discrimination based on the initial or native language of a prospective employee is probably not lawful under US federal law. Requiring the English-language skills actually needed for a particular job is lawful. Doing "editing, writing, or translation" obviously requires language fluency. But unless a business can demonstrate that it is impossible for non-native speakers to achieve fluency comparable to native speakers needed for a particular position, demanding a specific native language would be demanding a particular national origin, and thus be an unlawful practice.

According to 42 U.S. Code § 2000e–2

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; (emphasis added)

The US Equal Employment Opportunity Commission (EEOC) has a page on "Immigrants' Employment Rights under Federal Anti-Discrimination Laws" which says:

The law protects people against employment discrimination on the basis of their national origin. Following are some examples of employment discrimination based on national origin. ...

• Unlawful national origin discrimination may include discrimination because of a person's looks, customs, or language. ...
• Treating employees differently because they have a foreign accent is lawful only if accent materially interferes with being able to do the job. ....

According to Nolo's page on "Language and Accent Discrimination in the Workplace":

A job requirement that an employee must be fluent in English is legal if fluency is required to effectively perform the position. The Equal Employment Opportunity Commission (EEOC), the federal agency that interprets and enforces the laws prohibiting discrimination, has pointed out that the degree of fluency required varies from job to job, even within the same company. Therefore, blanket fluency requirements that apply equally to the customer service department and the warehouse workers might not be legal.

According to Workplace Fairness's page on "Language Discrimination":

Language discrimination is a subset of national origin discrimination. Language discrimination refers to the unfair treatment of an individual based solely upon the characteristics of their speech; such as, accent, size of vocabulary, and syntax. It can also involve a person's ability or inability to use one language instead of another. Because language discrimination is a form of national origin discrimination, the same body of law prohibits it.

...

Language discrimination is the unfair treatment of an individual solely because of their native language or other characteristics of speech, such as accent, size of vocabulary, and syntax. ... Some courts and government agencies have said that discrimination based on language is a form of national origin discrimination because primary language is closely related to the place a person comes from ...

In "What Recent Court Cases Indicate About English-Only Rules In The Workplace" by Rosanna McCalipst (U. PA. JOURNAL OF LABOR AND EMPLOYMENT LAW, volume 4 issue 2) it is said that:

Title VII of the Civil Rights Act of 1964 provides that it is unlawful to discriminate in the terms or conditions of employment based on one's race, religion, sex or national origin. There are two ways a plaintiff can prevail. Either the plaintiff can prove disparate treatment, meaning the employer intentionally discriminated on the basis of one of the protected grounds, or disparate impact, meaning a seemingly neutral employment practice puts an undue burden on members of a protected class. ...

The disparate impact analysis was first set out by the Supreme Court in Griggs v. Duke Power Co. 401 U.S. 424 (1971). From that case and the decisions of various courts interpreting the holding, a burden shifting analysis has emerged. There are three steps to the analysis. First, the plaintiff must establish that the policy in question has a disparate impact on a protected class. Next the employer must defend the policy by proffering a legitimate business purpose for it. Last, the plaintiff can still prevail if it shows there is a less discriminatory method by which the legitimate business goal can be obtained.

According to "Avoiding Claims of Citizenship and National Origin Discrimination When Interviewing, Hiring, and Onboarding Foreign Workers" by the Dickinson Wright law firm:

National origin discrimination includes, but is not limited to, discrimination due to place of birth, country of origin, ancestry, native language, and may be based on a perception that the individual looks or sounds “foreign,” or any other national origin indicator.

I should add that if an employer is using "native" simply to mean "a very high level of fluency and skill with the language" then such a requirement is not discriminatory under 42 U.S. Code § 2000e–2, and quite likely not under any US law. If the employer is using "native" to mean "a very high level of fluency and skill obtained by learning the language as a young child" then the case is less clear, and most of the precedents cited above will be of only limited significance at best. I could not find a case squarely on point where a requirement for a "native speaker" in either of these senses, or indeed in any sense, was challenged.

Answer 2

This is a potentially litigatable matter under US employment law, where the outcome would hinge on what a "native speaker" is. One interpretation – a legally discriminatory one – of "Native speaker of Somali" is "a person born and raised in Somalia, who acquired Somali as their first language". This requires a specific national origin. Another is that the person has acquired complete fluency in the language using a child's inherent unguided language-acquisition faculty, without the requirement to have been born or raised in any particular, and irrespective of the number of other languages that they acquired. This mode of language acquisition is open to anyone who had those particular linguistic experiences as a child, and does not specify anything about national origin.

Whether or not a requirement to be a native speaker (in the second sense) will be ultimately found to be practically defensible depends on the objective job requirements. Here is one defense of the Native Speaker Principle (Mother Tongue Principle). Unfortunately, some advocates of the principle mistakenly say things like "A native speaker of a language is a person who was born, grew up and obtained his or her education in a country where the target language is the official language" (you can ask me on Ling SE why this is so wrong-headed). The legal problem is that the expression "native speaker" demonstrably has a legally-discriminatory meaning as well as a legally non-discriminatory meaning. To prove national origin discrimination, the government (plaintiff) would need evidence beyond just the use of the term "native language".

The law does not generally require a business to adopt the lowest possible qualifications in job requirements, so the law will not require an employer to prove that a particular level of language fluency is necessary, just as the law does not require downgrading educational requirements on the theory that requiring a PhD has a discriminatory effect on certain protected classes. There is what is known as the "effects test" in discrimination law, that if a policy has a disparate impact on a protected group the policy may be found to be illegally discriminatory. But there is limited legal applicability of this notion in discrimination law.

Answer 3

They are setting that requirement in q very broken and illegal way - but their core goal is a legal one.

Think about it: if you require employees to speak Navajo because you need that, that is lawful, even though it will have a strong tendency to select for certain Native American tribes (i.e. Navajo).

An employer can require English language because it's part of the job - can't work with coworkers if you can't speak the language.

They can also require any accent they please. If the BBC's US subscription service wants to hire British accent people for their customer service operation, that's up to them.

Such things are simply not protected classes under employment law.

What they can't do is say "well even though your accent is perfect, we want UK expats not Hong Kong expats". That would violate the "race" or "national origin" rule in the equal employment laws. If they reject a Kiwi expat, they'd need to have a documentable reason why, that a Kiwi expat could pass if they developed more language skills.

So, saying "Native language speakers" is a blunder in how that requirement is stated (and syntactically screwball, unless they're looking for Navajo). It is far too close to looking for certain national origins, or trying to discriminate against naturalized immigrants.

However, what they're actually after is perfectly possible. Requiring "standard Iowa accent" US English speakers, and having a competent test for that, is perfectly fine, as long as you reject people from Boston, Korea, Alabama, Egypt and Minnesota with equal zeal. And can prove that when someone sues you for national origin discrimination.

It would really help if your business had a legitimate reason for that, such as creating social media videos.

Answer 4

It may depend on how strictly they interpret the term "native speaker". I would certainly have cause for complaint if they classified me as a non-native speaker of English, given that it has been my primary language since I was about 4. If they're using the term as a shorthand for a level of fluency in the language, rather than its literal meaning indicating when and how that fluency was acquired, I think they would probably be OK.

Answer 5

While I'm unaware of any case law in the specific case of translators, one possible defense to an employer who hires only native speakers is that national origin is a bona fide occupational qualification (BFOQ). BFOQ is an exemption to anti-discrimination law. The only scenario where I could imagine a BFOQ defense surviving a court challenge is in a translation job (and even then, it might fail).

Realistically, I would imagine an argument like:

1. Native speaking is de facto discrimination based on national origin.
2. However, native speaking is a BFOQ.

I don't know if such an argument would succeed in court. However, I'll note that even if this is not a requirement in order to do the job to a satisfactory level of quality, merely being required to keep customers happy might be sufficient for the courts, on condition that the requirement was linked strongly enough to the job (as is the case for translation). There is some case law which suggests that the courts might be sympathetic to this argument.