[IPAC-List] foreign language as a minimum requirement for employment

[Pluta, Paul]

It is true that language is not a good proxy for national origin.  A
Spanish speaker may be from Spain, El Salvador, or Peru.  However, when
I refer to disparate impact based on national origin, I mean the
disparate impact of a foreign language requirement on the basis of an
applicant's national origin. It seems that one's national origin might
affect the likelihood that one has learned a specific foreign language.
For example, a Chinese immigrant may know Mandarin and English and have
all the other knowledge, skills, and abilities needed to perform the
work, but may not have learned the foreign language specified as a
minimum requirement for the position.  Hence, the minimum requirement
may result in zero individuals of Chinese origin applying for the
position, even though that national origin group may be well represented
in the relevant labor market.

As a minimum requirement, a foreign language requirement could
potentially affect recruitment yields.  What are the yield ratios for
applicants for a position with a foreign language minimum requirement by
national origin (including U.S.A.)?  What about the next hurdle, where
the applications are screened for the minimum requirement? How do these
ratios compare with the distribution in the relevant labor market?  How
would an organization defend the minimum requirement against allegations
that it represents an artificial and arbitrary barrier to an employment
opportunity (i.e., at what point and based on what evidence can
'business necessity' be established)?  As with other selection
requirements that result in adverse impact, is the employer obligated to
investigate alternatives that would achieve the desired results for the
organization without resulting in adverse impact? 

Paul E. Pluta, MA, SPHR
Human Resources Analyst III
Los Angeles County Department of Human Resources
Workforce Planning, Test Research, & Appeals Division


-----Original Message-----
From: Heim, Janis [mailto:Janis.Heim at nebraska.gov] 
Sent: Monday, January 12, 2009 9:46 AM
To: Pluta, Paul
Subject: RE: [IPAC-List] foreign language as a minimum requirement for
employment

Paul,

Your point is well-taken.  Requirements in Nebraska are determined by
using Subject Matter Experts familiar with the jobs, usually supervisors
and long-term incumbents.

One of the first language-requirement suits, based on the phone calls I
receive, may come in this state, where immigration has increased
mightily in the last few years.  When a new meat packing plant opened,
one of the local areas had an influx of over 2,500 employees, over 2/3
of whom had Spanish as a first language. To handle an overwhelming
demand, the Department of Motor Vehicles advertised for a Drivers
License Examiner who was bilingual in Spanish.  Despite the
long-standing high school language requirement I referred to, not to
mention a small Hispanic community dating back over 100 years, the
immediate response from a number of local people was that not only were
all the meatpacking jobs going to immigrants, now the State was only
hiring foreigners.


The local response to the new meatpacking jobs had been around 200
applicants, half of whom quit after the first three days. If the
immigrants were fluently bilingual, the extra Drivers License Examiner
would not have been needed.  The DMV language requirement here and
elsewhere was routinely met by hiring a Nebraska-born applicant who
spoke both languages and had the other skills needed.

Now because of the many new immigrants to Nebraska, the demand for
language fluency is increasing, and in many languages, most of which
have never been taught in schools. At the same time, as immigrant groups
become established, they begin to demand that not only language
requirements be met but that positions filled should show cultural
representation.  This may become an issue depending on federal changes
with the new administration.

National origin is a hot button issue that I did not mean to downplay.
At the same time, I submit that education in most countries (above the
unskilled worker level) and even including this one in some places,
routinely requires fluency in a second language.  The ability to speak
more than one language fluently is not the same as a national origin
requirement.  The fact that we may think it is, speaks more to American
education than to the actual state of the world.

Janis Heim
402.471.4463
janis.heim at nebraska.gov
Personnel Selection Analyst
NEBRASKA AS-STATE PERSONNEL

-----Original Message-----
From: Pluta, Paul [mailto:ppluta at hr.lacounty.gov]
Sent: Monday, January 12, 2009 10:40 AM
To: Heim, Janis; IPAC-List at ipacweb.org
Subject: RE: [IPAC-List] foreign language as a minimum requirement for
employment

My questions were directed at issues pertaining to protections provided
to individual members of specific groups under Title VII of the Civil
Rights Act of 1964.  Educational requirements are not covered by the
Act, and I was directing my questions specifically to the area of
employee selection.

I asked very specific questions about a very pertinent issue.  This type
of requirement most certainly does result in adverse impact based on
national origin.  Just because, to the best of my knowledge, there has
not yet been a legal challenge to the foreign language requirement does
not mean it could not happen.  I am simply trying to get the
perspectives of highly trained and qualified professionals in the field
of employee selection regarding this issue.

The very fact that I am posing these questions belies a certain degree
of ignorance on my part.  If I had a perfect understanding of all the
issues pertaining to this topic, I would not feel the need to ask
questions.  Replies that specifically address the questions posed in my
original post are very much desired.

Paul E. Pluta, MA, SPHR
Human Resources Analyst III
Los Angeles County Department of Human Resources
Workforce Planning, Test Research, & Appeals Division

-----Original Message-----
From: Heim, Janis [mailto:Janis.Heim at nebraska.gov]
Sent: Monday, January 12, 2009 8:04 AM
To: Pluta, Paul
Subject: RE: [IPAC-List] foreign language as a minimum requirement
foremployment

Paul,

Only in America would people think a "foreign language requirement"
would result in discrimination based on national origin.  My high school
in rural Nebraska was teaching Spanish 40 years ago and had taught
French before that.  Graduates went on to major in various modern
languages in college and find jobs all over the world.  Now people think
their kids are being discriminated against because of the same old
language requirement.  I don't know about desire, but ignorance seems to
be doing well these last few years.

Janis Heim
402.471.4463
janis.heim at nebraska.gov
Personnel Selection Analyst
NEBRASKA AS-STATE PERSONNEL

-----Original Message-----
From: ipac-list-bounces at ipacweb.org
[mailto:ipac-list-bounces at ipacweb.org] On Behalf Of Pluta, Paul
Sent: Monday, January 12, 2009 8:36 AM
To: Barney, Betsy; IPAC-List at ipacweb.org
Subject: Re: [IPAC-List] foreign language as a minimum requirement for
employment

Desire is a wonderful thing.  How did your school district determine
that fluency in a foreign language should be a 'minimum requirement' for
employment selection purposes?  In essence, what job analysis
information was relied upon to make such a determination?  Where was the
line drawn between 'nice to have' and 'minimum requirement' and what
were the determining factors?  What foreign language did your school
district choose as a minimum requirement and why?  Does the language
requirement result in adverse impact based on national origin?  If so,
how did your district validate the foreign language minimum requirement?

Paul E. Pluta, MA, SPHR
Human Resources Analyst III
Los Angeles County Department of Human Resources
Workforce Planning, Test Research, & Appeals Division


-----Original Message-----
From: Barney, Betsy [mailto:betsy.barney at lausd.net]
Sent: Friday, January 09, 2009 5:12 PM
To: Pluta, Paul
Subject: RE: [IPAC-List] foreign language as a minimum requirement for
employment

It isn't customer preference with us.  It is our desire to be sure our
customers, many of whom have only partial understanding and use of
English
get information they understand about their children's education and
opportunities.  We are a school district.

-----Original Message-----
From: ipac-list-bounces at ipacweb.org
[mailto:ipac-list-bounces at ipacweb.org] On Behalf Of Pluta, Paul
Sent: Friday, January 09, 2009 12:17 PM
To: IPAC-List at ipacweb.org
Subject: [IPAC-List] foreign language as a minimum requirement for
employment

I have been seeing bilingual as a requirement for employment
increasingly over the past few years.  What if such a requirement
results in adverse impact for different groups based on national origin?
What are the criteria for defensibility in terms of the job-relatedness
of the requirement?  Is this requirement most often based on a "business
necessity" or "customer preference"?  Does anyone know if this
requirement has ever been challenged in court?  It seems to me that any
organization that does business exclusively within the borders of the
United States (excluding some territories, such as Puerto Rico) would
only be imposing the requirement based on customer preference.  However,
multinational corporations that conduct business on a regional or global
scale may be able to make a better argument for business necessity.
Where is the line that divides customer preference from business
necessity in this situation?  Are there any thoughts, experiences, or
opinions anyone would like to share?



Paul E. Pluta, MA, SPHR

Human Resources Analyst III

Los Angeles County Department of Human Resources

Workforce Planning, Test Research, & Appeals Division





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