New Jersey Issues Guidance on Language-Based Employment Discrimination

Quick Hits

• The New Jersey Division on Civil Rights (DCR) issued new guidance on state antidiscrimination law, warning employers that policies or practices related to language could be forms of unlawful employment discrimination under the Law Against Discrimination (LAD).
• The guidance highlights the DCR’s view that language policies or practices may be discriminatory based on disparate treatment or disparate impact theories and that repeated harassment over a worker’s language or accent could create an unlawful hostile work environment.
• The guidance recognizes that language proficiency requirements can be a “bona fide occupational qualification for particular positions,” but the burden is on the employer to show that the qualification is reasonably necessary to the normal operation of the business or enterprises.

On January 16, 2026, New Jersey Attorney General Matthew J. Platkin and the DCR released a new guidance document, titled “Guidance on Language Discrimination Under New Jersey’s Law Against Discrimination January 2026,” clarifying the division’s interpretation of the LAD as recognizing potential unlawful language-based discrimination. The guidance highlights how employment policies and practices related to language, such as language qualification requirements, may lead to potential unlawful employment discrimination under the LAD due to the “intrinsic relationship” between language and protected characteristics.

“Where there is no articulable reason behind a language-based requirement or prohibition, the close link between language and protected characteristics may lead a court or DCR to conclude that language was used as a proxy to discriminate based on a protected characteristic,” the guidance states.

In announcing the new guidance, the attorney general and the DCR emphasized the need to protect against such discrimination, given New Jersey’s ethnic and racial diversity. According to the announcement, nearly a quarter of New Jersey residents are foreign-born, and nearly one-third of New Jersey households speak a language other than English.

Specifically, the guidance clarifies the DCR’s view that employment decisions or policies tied to a worker’s language could result in unlawful discrimination under disparate treatment or disparate impact legal frameworks, and that allowing employees to be subjected to repeated “bias-based harassment” based on their language or accent could violate the LAD. At the same time, the guidance recognizes that in some circumstances certain language proficiency may be a “bona fide occupational qualification for particular positions.”

Unlawful Language-Based Discrimination

According to the guidance, “language discrimination” occurs “when individuals are mistreated and/or devalued based on their language use” or because of “their lack of English proficiency” or “biases based on a person’s native language, accent, and speech patterns.” This may include refusing to hire applicants who cannot speak English for jobs that do not reasonably require such proficiency. The guidance further recognizes the connection between language and accent, stating that “offensive and discriminatory remarks about a person’s language or accent, if sufficiently severe or pervasive, may constitute actionable discrimination under the LAD.”

Bona Fide Occupational Qualifications

The guidance recognizes that not all language-based restrictions or requirements necessarily violate the LAD. Proficiency in a particular language may be “a bona fide occupational qualification for particular positions,” but the burden of establishing the language proficiency qualification is on the employer to show that it is “reasonably necessary to the normal operation of that particular business or enterprise.” By way of example, the guidance points to an English and Spanish proficiency requirement for a bilingual English-Spanish customer service representative position as a potential qualification that may not violate the LAD.

The new guidance also explicitly does not apply to language accessibility laws, such as a 2024 law that requires the state Executive Branch to provide translations of key documents in the most common non-English languages spoken in New Jersey.

Disparate Treatment

The guidance warned that the DCR may consider neutral workplace policies or practices related to language to be unlawful under the LAD if they disproportionately negatively affect members of a protected class due to “language-related factors that are tied to their protected characteristics.” Because language is so intertwined with protected characteristics, such as national origin, ancestry, nationality, race, religion, or disability, a language proficiency qualification could be considered a “proxy” protected characteristic, the guidance states. For example, a grocery store owner who pays higher wages to employees who speak only English or passes over for promotions those who speak English as a second language or “prefers people it considers to be ‘fully American,’” may be liable for unlawful disparate treatment based on language according to the DCR.  

Disparate Impact

The guidance further recognizes that language restrictions or qualifications meant to be neutral policies could be considered unlawful discrimination. An employer that requires advanced English proficiency or requests that employment agencies refer only job candidates with advanced English proficiency is likely to disproportionately negatively impact job candidates of certain nationalities or other protected characteristics, the guidance states. Such a policy could potentially violate the LAD unless the employer can show the “policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest.”

The guidance comes just weeks after the DCR adopted new comprehensive rules that codify and reinforce disparate impact liability under the LAD as the federal government under the Trump administration has ceased enforcement of federal antidiscrimination based on disparate impact.

Bias-Based Discrimination

The guidance further warns that, in certain circumstances, employers have an obligation to stop “bias-based harassment” relating to a worker’s language if the harassment results in a hostile environment and the employer knows or should have known of the conduct. For example, a “Jewish warehouse worker” who is “repeatedly subject[ed] to derogatory comments” from coworkers for speaking Hebrew could be subject to a hostile environment if it is pervasive and supervisors fail to stop it.

Next Steps

Employers in New Jersey may want to take note of the language discrimination guidance and how it recognizes the connection between language qualifications or restrictions and their impact on protected characteristics, including national origin, ancestry, nationality, race, religion and disability. The guidance warns employers that language proficiency requirements or policies, such as advanced English proficiency requirements, could violate the LAD. Notably, the guidance warns that even neutral language policies or practices could serve as a proxy for protected characteristics and be used as a pretext for discrimination in violation of the LAD.

However, the guidance only expresses the New Jersey DCR’s views on the application of state law. Courts could take different interpretations in certain situations. Moreover, while the guidance references 2016 guidance from the U.S. Equal Employment Opportunity Commission (EEOC) interpreting Title VII of the Civil Rights Act of 1964, analysis of language discrimination under federal law could differ. In particular, the EEOC under the Trump administration has been reconsidering past guidance and taking new positions, including halting enforcement of discrimination claims based on disparate impact and focusing on national origin discrimination and anti-American bias.

Ogletree Deakins’ Morristown office will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, and New Jersey blogs as additional information becomes available.

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