Section 348-3-15 - ANCESTRAL OR NATIONAL ORIGIN DISCRIMINATIONIn addition to any other unlawful practice on the basis of ancestry or national origin prohibited by this chapter or the Act:
1.Definition of ancestral or national origin discriminationUnlawful employment discrimination includes discrimination because of ancestry or national origin. The Commission defines national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual's, or their ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group. For example, denial of equal employment opportunity based on such factors as (a) marriage to or association with persons of a national origin group; (b) membership in, or association with an organization identified with or seeking to promote the interests of national origin groups; (c) attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group; and (d) because an individual's name or spouse's name is associated with a national origin group may form the basis of a claim for national origin discrimination.
2.Citizenship requirementsIn those circumstances where citizenship requirements have the purpose or effect of discriminating against an individual on the basis of national origin, they are unlawful employment discrimination prohibited by this chapter and the Act.
3.Selection proceduresA. In investigating an employer's selection procedures (including those identified below) for adverse impact on the basis of national origin, the Commission will apply the Uniform Guidelines on Employee Selection Procedures ("UGESP"), 29 C.F.R. part 1607 . Employers and other users of selection procedures should refer to the UGESP for guidance on matters, such as adverse impact, validation and recordkeeping requirements for national origin groups.B. The Commission has found that the use of the following selection procedures may be discriminatory on the basis of national origin. Therefore, it will carefully investigate charges involving these selection procedures for both disparate treatment and adverse impact on the basis of national origin. (1) Fluency-in-English requirements, such as denying employment opportunities because of an individual's foreign accent, or inability to communicate well in English.(2) Training or education requirements which deny employment opportunities to an individual because of their foreign training or education, or which require an individual to be foreign trained or educated.4.Speak-English-only rulesA.When applied at all times. A rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. The primary language of an individual is often an essential national origin characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or the language they speak most comfortably, disadvantages an individual's employment opportunities on the basis of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment. Therefore, the Commission will presume that such a rule is unlawful employment discrimination and will closely scrutinize it.B.When applied only at certain times. An employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is work-related and justified by business necessity. Any such rule may nonetheless have a discriminatory impact on the basis of national origin, in which case the employee may prevail by showing that an alternative, less discriminatory means of achieving the business necessity was available to the employer.C.Notice of the rule. It is common for individuals whose primary language is not English to inadvertently change from speaking English to speaking their primary language. Therefore, if an employer believes it has a business necessity for a speak-English-only rule at certain times, the employer should inform its employees of the general circumstances when speaking only in English is required and of the consequences of violating the rule. If an employer fails to effectively notify its employees of the rule and makes an adverse employment decision against an individual based on a violation of the rule, the Commission will consider the employer's application of the rule as evidence of unlawful employment discrimination on the basis of national origin.94-348 C.M.R. ch. 3, § 15