Virtual Hawaii Employment Lawyer

Title VII prohibits discrimination because of “national origin.”  The Equal Employment Opportunity Commission (“EEOC”) defines national origin discrimination as the denial of equal employment opportunity because of an individual’s ancestry, place of origin, or because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group. 29 C.F.R. § 1606.1.

“National origin” is a vague concept.  The EEOC attempts to resolve some of the uncertainty by recognizing that while one’s “ancestry” is not necessarily synonymous with one’s national origin, where a person was born, the terms overlap as a legal matter.  The United States Supreme Court has itself stated that, “the term `national origin’ on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came.”

Hawaii law, HRS Chapter 378, prohibits “ancestry” discrimination, but not national origin discrimination.  Like Title VII, the terms “ancestry” and “national origin” as a practical matter overlap under Hawaii law.  The state regulations are more expansive in that employers are precluded, unless there is a bona fide occupational qualification, from making pre-employment inquiries and requests for information which tend to disclose the applicant’s ancestry.  Under federal law, such inquires are not illegal per se, but may constitute evidence of unlawful discrimination. Read more…

In California, a “Language Protection” Bill will be presented to Governor Schwarzenegger for his signature.  According to this article, the Bill, if passed, will protect the freedom of an individual to speak any language they choose in a business establishment.  The law will make it unlawful if a business “requires, limits or prohibits” the use of any language, except if doing so is a business necessity.

The Bill appears to protect the freedom of customers to speak a language other than English, in addition to employees.   Interestingly, the proposed Bill seems to mirror statutory protections already in place for employees/applicants that prohibit national origin discrimination and the EEOC’s extension of such prohibition to English-Only rules in the workplace.  You may view the article on the proposed Bill here:  Language Protection Bill Debated in California.

Hawaii employers should understand that both the state and federal agencies charged with enforcing employment laws will view English-Only rules with suspicion and that many time such rules, regardless of intent and whether in writing, will be found unlawful.  Thus, an English-Only rule/policy should be only used as a last resort and after consultation with legal counsel. Read more…