Firing an employee because of their limited English skills is often subjective. How your language skills apply depend largely on your position and would give a better indicator of why you were fired. If you were an English editor with limited English skills, you were probably in the wrong position from the start.
If, however, you were fired simply because you are a sales clerk and your boss claimed, “Some of the customers felt uncomfortable with your accent,” you most likely have a discrimination complaint. The courts have already ruled that the prejudices of customers or fellow workers cannot be used as a reason to dismiss an otherwise satisfactory worker.
As such, you would likely have a claim for national origin discrimination and should make an appointment to speak with an Equal Employment Opportunity Commission (EEOC) counselor about filing a Charge of Discrimination. Federal law states that employers with 15 or more workers cannot discriminate in employment situations. However, many states have laws that reduce that number to provide better protections for workers in their state.
In addition, the time limit is 180 days from the date of discrimination to file a Charge of Discrimination if you want the EEOC to conduct an independent investigation of the incident. After 180 days, it may not be possible for the EEOC to take your case. Therefore, you should file as soon as possible after the incident.
Many employers fire an employee “without cause” because they fear the legal consequences of a wrongful dismissal, but there is always a reason. After going through the recruiting process, interviewing, hiring, and training, an employer does not just fire someone without cause. That simply does not make sense.
Even working for an “at-will” employer, who supposedly can fire you at will for any reason or no reason, cannot violate the law in their firing. Discrimination or harassment is a violation of Title VII of the Civil Rights Act of 1964, which made it unlawful to discriminate based on race, religion, color, sex, or national origin.
Discrimination based on national origin
It is unlawful to discriminate against an individual due to perceived or actual place of birth or the national origin of their ancestors. Additionally, an employer may not use one’s looks, customs, or accent as a method of denying employment benefits or as a means to terminate employment.
Illegal practices used to determine or eliminate certain nationalities
Some policies and practices of employers are illegal. Policies that restrict people below a certain height from applying for a job or better position, such as shop supervisor, may be an indirect method of reducing the number of Asians and Hispanics who would apply. Conversely, policies that require individuals to be six-feet-tall or above for a supervisory position may discriminate indirectly against women. Unless there is a legitimate reason for a height restriction, it is probably unlawful.
Requiring applicants to produce a high school diploma or asking applicants if they speak Arabic or other practices that do not affect the position are likely illegal. Many other practices may not be a violation of the EEOC regulations but could violate the Immigration Reform and Control Act (IRCA) of 1986.
Restrictions such as:
- US citizens only.
- Green card required.
- Additional document requirements.
If you take your complaint to the EEOC and it is an IRCA violation, the EEOC will in most cases forward the complaint to the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC), which handles IRCA violations.
How does IRCA protect individuals against discrimination?
The IRCA, coupled with the Civil Rights Act of 1964, prohibit discrimination and harassment in all phases of employment from recruitment to retirement. It is unlawful to discriminate against an employee or applicant due to their actual or perceived national origin during the hiring process, in setting wages, administering bonuses and benefits, promotions, vacations, training, transfers, terminations, early retirement, or layoffs. Basically, any administrative choice must be based on merit, not ethnicity.
If an applicant is denied employment or treated unfairly in the workplace because of their ethnicity and that mistreatment causes them financial loss or hardship, the OSC or the EEOC can help negotiate a settlement with the employer, provide counseling, or assist a victim with legal action, if necessary.
Requirements of English only in the workplace are often unlawful. The EEOC and many state and district courts have ruled the “English Only” practice unlawful unless there is a specific business necessity that justifies the action:
- Nothing but English, including breaks and lunches can rarely be justified.
- Use of English for safety, when necessary.
- English only for team projects, particularly when more than two languages are spoken.
- English only for communicating with customers.
When there is a need for English only, a supervisor must notify all workers involved and cannot discipline workers unless that has happened.
Employers who wish to stay within employment law regulations should treat every employee or applicant the same.
- When an employer requests that an applicant take an English language exam, he must ask all applicants to take an identical exam.
- When the employer requests applicants take an English language exam, there has to be a bona fide reason, such as a position where excellent English language and writing is required.
- When an employer asks a successful applicant for proof of work eligibility, he must ask every successful applicant and give them three days to produce the document.
- That documentation must be the same for all applicants.
Employees who feel their rights have been violated, should first notify their supervisor or employer so they may attempt to fix discriminatory practices or policies. If the situation is not changed satisfactorily, the employee should notify the EEOC or INA as soon as possible.