This article argues that, in the absence of a legitimate, non-discriminatory reason or a business necessity, Title VII of the 1964 Civil Rights Act can protect employees from language-based discrimination in the workplace. Language is a part of one’s ethnicity, which refers to one’s culture. Ethnicity, much as race already does, should receive protection under Title VII. Plaintiffs, however, have the burden of proof in litigation, and so a plaintiff who sues under a discrimination theory should have to make his or her case to the appropriate fact-finder. Drawing upon the insights of critical theory, particularly to explore concepts like ethnicity and race in a dynamic way, the article develops this position in two major sections. Section II of the article looks at the current state of the law and consists of subsections on Title VII claims in general, language discrimination and national origin, and circuit approaches to language discrimination cases. Section III of the article addresses proposals for reforming the law and includes subsections on amendments to Title VII, responses to objections to the proposed amendments, disparate impact and disparate treatment analyses in the courts, and the linguistic situations of monolingual and bilingual speakers.
Carlo A. Pedrioli, Respecting Language as Part of Ethnicity: Title VII and Language Discrimination at Work, 27 HARV. J. ON RACIAL & ETHNIC JUST. 97 (2011)