Is it legal for employers to hire only native speakers? 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 &quot;X speaking perfect Y&quot; 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.
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 &quot;editing, writing, or translation&quot; 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 &quot;Immigrants' Employment Rights under Federal Anti-Discrimination Laws&quot; 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 &quot;Language and Accent Discrimination in the Workplace&quot;: 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 &quot;Language Discrimination&quot;: 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 &quot;What Recent Court Cases Indicate About English-Only Rules In The Workplace&quot; 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 &quot;Avoiding Claims of Citizenship and National Origin Discrimination When Interviewing, Hiring, and Onboarding Foreign Workers&quot; 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 &quot;native&quot; simply to mean &quot;a very high level of fluency and skill with the language&quot; 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 &quot;native&quot; to mean &quot;a very high level of fluency and skill obtained by learning the language as a young child&quot; 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 &quot;native speaker&quot; in either of these senses, or indeed in any sense, was challenged.
Unfortunately, you are probably not entitled to the redundancy / severance money since you weren't technically ever made redundant / laid off - there was no point in time where you were willing and able to work where they refused you, and I presume you were paid for all time worked. If you're concerned that they only changed their tune because they knew you had a better job already lined up - well, you can call their bluff or just use it as a learning experience. In what jurisdiction do you work? If the US, you could call their bluff, say you'd rather stay and see what they do. You would then keep the option of simply walking away with your stuff in a box any time you felt like it (assuming at-will employment and no contracts that state otherwise).
Concerning the requirement to interview US workers before hiring workers for H-1B visas, this is covered in 8 USC §1182 (n)(1)(G)(i): (i) In the case of an application described in subparagraph (E)(ii), subject to clause (ii), the employer, prior to filing the application— (I) has taken good faith steps to recruit, in the United States using procedures that meet industry-wide standards and offering compensation that is at least as great as that required to be offered to H–1B nonimmigrants under subparagraph (A), United States workers for the job for which the nonimmigrant or nonimmigrants is or are sought; and (II) has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought. &quot;Industry-wide standards&quot; for the recruitment process typically means posting advertisements and conducting job interviews. Of course, if the company never intended to hire anyone but the H-1B candidate, that's not really &quot;good faith&quot;, but this can be difficult for the feds to prove. Note that this requirement doesn't apply to all employers. Section (E)(ii) says that this rule only applies to those employers who are &quot;H–1B-dependent&quot; (which amounts to having a certain number of employees working under H–1B visas) and to those who have been caught willfully violating these rules within the past five years. I am unsure about the rules surrounding federal contracts, so folks should feel free to edit this answer to include such information.
The EEOC states that national original discrimination in employment is illegal, which is supported by 28 CFR Part 44 (discriminate means &quot;the act of intentionally treating an individual differently from other individuals because of national origin or citizenship status, regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility&quot;). See also Title VII of the Civil Rights Act of 1964: 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; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. codified at 42 USC 2000e–2. The internet widely advises that asking such questions is illegal. The EEOC has a more nuanced view of the matter as articulated here: they say We recommend that you avoid asking applicants about personal characteristics that are protected by law, such as race, color, religion, sex, national origin or age. These types of questions may discourage some individuals from applying, may be viewed suspiciously by some applicants, and may be considered evidence of intent to discriminate by the EEOC. If you do not have this information when you decide who to hire, it may be easier for you to defend your business against a hiring discrimination complaint. Before reaching a conclusion, we should check what an employee is (42 USC § 2000e(f)), namely: an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States. This just tells us that in writing the law, Congress left it somewhat open what an &quot;employee&quot; is. An Amazon seller is, on the face of it, not an employee of Amazon, instead, a seller is an independent contractor. Of course that is a legal question that can't just be decided superficially, see for example California's AB5 (but even under that law, a seller is not an employee). As articulated by SSA The common law control test is the basic test, using the common law rules, for determining whether a relationship exists between the worker and the person or firm that they work for. Under the common-law test, the employer has the right to tell the employee what to do, how, when, and where to do the job If the Dept. of Labor or the IRS determine that you are (would be) an employee, then this is illegal discrimination, otherwise it is not. Since you are not paid a wage, the prospects for being deemed an employee are extremely dim. The EEOC gives this guidance on the distinction, with a very long list of examples which in general support the position that a vendor is an independent contractor and not an employee.
This is covered by the page Job Applicants and the ADA from the U.S. Equal Employment Opportunity Commission. There it is said: I have a disability and will need an accommodation for the job interview. Does the ADA require an employer to provide me with one? Yes. Employers are required to provide &quot;reasonable accommodation&quot; -- appropriate changes and adjustments -- to enable you to be considered for a job opening. Reasonable accommodation may also be required to enable you to perform a job, gain access to the workplace, and enjoy the &quot;benefits and privileges&quot; of employment available to employees without disabilities. An employer cannot refuse to consider you because you require a reasonable accommodation to compete for or perform a job. The page mentions as plausible required reasonable accomodations: providing written materials in accessible formats, such as large print, braille, or audiotape providing readers or sign language interpreters ensuring that recruitment, interviews, tests, and other components of the application process are held in accessible locations providing or modifying equipment or devices adjusting or modifying application policies and procedures. The page goes on to say that: You must inform the employer that you need some sort of change or adjustment to the application/interviewing process because of your medical condition. You can make this request orally or in writing, or someone else might make a request for you (e.g., a family member, friend, health professional, or other representative, such as a job coach). A letter from a doctor is not automatically required. But in some cases a prospective employer might reasonably insist on nsuch a letter. The page says: If your disability and need for accommodation are not obvious, the employer may ask you for reasonable documentation explaining the disability and why an accommodation is needed. There is no specified evidence or form that an employer need provide in rejecting a request for an accommodation. The employer is only required to provide &quot;reasonable&quot; accommodation, and is not required to provide any accommodation if it would cause &quot;undue hardship&quot; to the employer. If several possible accommodations would reasonably allow the potential employee to apply the employer may choose which one or ones to offer. It need not offer the one preferred by the prospective employee. All this also applies to accommodations for an employee after s/he has been hired or has a job offer.
It sounds like you've read about two party consent and public spaces. But while anyone can sue, it's winning a case that's relevant. "My client respects the applicant's beliefs, but choosing to express beliefs in such a way during a job interview indicated sufficiently questionable judgement that my client was unable to consider the applicant further for the advertised position." "It has also become apparent that the plaintiff was not acting in good faith in making an application for employment." Court finds for the defendant and orders the plaintiff to pay costs.
Given that they told me I would get back pay and I worked conditional on that information, am I entitled to it? You are entitled to backpay in accordance with the terms you accepted from HR. The employer's refusal to pay you from October 1st is in violation of Austria's Allgemeines bürgerliches Gesetzbuch at § 860a. At this point you have fully complied with the conditions on which your continued employment was contingent. From then on, the employer's belatedness in revoking its commitment to backdate your start date to October 1st is not cognizable: Prior to your full compliance with the conditions of academic nature, there was no possible way for you to be aware of the employer's repudiation of its obligations regarding the October-December compensation. The employer's failure to timely notify you of the unilateral change is especially notorious and hard to justify. Your employment &amp; relocation to Austria suggests that the employer had --and waived-- ample opportunity to inform you that any work you perform prior to addressing the contingent aspect will not be compensated. Even if the employer ventures with a dubious allegation of that sort, it is unlikely to survive § 1152.
I think you're viewing the use of pronouns and contracts wrong. You are speaking to the Licensee, not some third person. So you would say "You agree to give us all your bases", not "The]y agree to give us all your bases". If you were to use a third person pronoun in describing what the other person is gonna do and what you'll do for them, calling the Licensee "they" is positively confusing, and more likely to cause problems. I hope they see my point.