Ed Zalewski was working as a compliance expert at the J.J. Keller and Associates safety and compliance firm in Neenah, Wis., when he started noticing more clients calling with questions about a topic often lost in translation in the past several years.
Can employers screen job candidates based on their ability to speak English?
Are workers allowed to speak a different language with one another during lunch breaks?
If that foreign language makes colleagues uncomfortable, does that constitute harassment?
Mr. Zalewski's observations in Wisconsin mirrored trends seen across the country, as demographics shift and employers grapple with legal questions that come with hiring workers speaking many different languages.
At the center of the legal issue is the U.S. Equal Employment Opportunity Commission, an agency charged with addressing company policies concerning discrimination based on national origin.
The EEOC is best known for handling cases involving sex or age discrimination, but the "national origin" portfolio of claims is increasing as America's population -- and workforce -- becomes more diverse.
Claims often center on discrimination based on what language employees can speak at any given time, or treating employees or colleagues unfavorably "because they appear to be of a certain ethnic background (even if they are not)," according to the EEOC.
The number of national origin discrimination charges has consistently risen since 1997. A substantial jump was seen in 2002 when, Mr. Zalewski said, discrimination cases concerning employees from the Middle East and the Indian subcontinent increased after the Sept. 11, 2001, terrorist attacks.
In fiscal year 2011, there were 11,833 such charges, with 65.7 percent of them ruled to have no reasonable cause, according to the EEOC.
"It has to be pretty significant before it rises to the level of harassment," said Mr. Zalewski. "It has to compel a person to quit."
Even with the bar set high, it can be costly in cases found to have valid claims. Monetary benefits for national origin claims in 2011 totaled $34.1 million. That's up from the 11,304 cases and $29.6 million seen in 2010.
The category remains a small percentage of the claims handled by the EEOC, which saw just under 100,000 total charges in 2011 concerning discrimination based on race, sex, national origin, religion, disability and color. Texas accounted for 10 percent of those claims.
Pennsylvania cases accounted for about 4.3 percent of the total. The state has EEOC offices in Philadelphia and in Pittsburgh, with the latter office receiving cases from a wide swath of Western and Central Pennsylvania.
Agency rules don't allow "all English all the time" rules in the workplace, but several caveats or special situations have emerged as workplaces become more diverse, said Mr. Zalewski.
An employer can demand job applicants have a proficient level of English if day-to-day aspects of the job -- such as English-only instructional manuals -- require it. Employers are not required to translate those manuals in the same way they would have to retrofit a facility to comply with the Americans with Disabilities Act, said Mr. Zalewski.
Similarly, an employer can require workers to speak English if worker safety depends on a universal system of communication, such as at a construction site. But those same construction workers who are shouting "Watch out!" on the job are free to speak a different language in the break room, said Mr. Zalewski.
If speaking that other language makes other colleagues uncomfortable, an employer can approach those workers about the issue but not reprimand them.
Issues concerning national origin discrimination are playing out in states where immigration issues have become politically charged in recent years, such as Texas, Florida and Arizona, said Mr. Zalewski. But they are also being raised in states like Wisconsin, where significant numbers of Hmong refugees have settled over the past few decades.
"It's not just a white person making fun of a Spanish person," he said. "It could be a British person making fun of an Irish person."
The latest U.S. census report on country's linguistic diversity found the population of Americans speaking a language other than English at home surged by 140 percent from 1980 to 2007. Vietnamese speakers saw the highest percentage change with an increase of 511 percent.
National origin discriminations are also becoming more diverse, said Mr. Zalewski.
He had one client who didn't think he had national origin discrimination issues -- but that was because he didn't speak Spanish and didn't know that the Mexican and Puerto Rican employees in his business weren't getting along.
Even though a majority of national origin claims are found not to have a reasonable cause, Mr. Zalewski said, the issue often doesn't go away. An employee could be punished by their employer for filing a claim in the first place.
"You might not have a claim on national origin, but if you are subjected to further harassment because you filed one, you have a retaliation claim," he said.legalnews
Erich Schwartzel: firstname.lastname@example.org or 412-263-1455.