A. The regulation

Section 656.21(b)(2)(i)(C) provides that the job opportunity shall not include a requirement for a language other than English unless that requirement is adequately documented as arising from business necessity.

B. Information Industries applied

The business necessity standard of Information Industries, 88-INA-82 (Feb. 9, 1989) (en banc) (discussed supra Division V, B) is applicable to a foreign language requirement. See Coker's Pedigreed Seed Co., 88-INA-48 (Apr. 19, 1989) (en banc). As the Information Industries standard has developed in relation to foreign language requirements, the first prong generally involves whether the employer's business includes clients, co-workers or contractors who speak a foreign language, and what percentage of the employer's business involves this foreign language. The second prong generally focuses on whether the employee's job duties require communicating or reading in a foreign language.

C. Communication with clients

1. Number of clients who speak the foreign language

The first prong of the business necessity test requires an employer who imposes a foreign language requirement to establish that the requirement bears a reasonable relationship to the occupation in the context of the employer's business. One method for showing such a relationship is to establish the existence of a foreign language speaking clientele.

a. Requirement that percentage be "significant"

The first prong of the business necessity test for a foreign language requirement is not established where the percentage of clients who speak the language is small.

• Felician College, 87-INA-553 (May 12, 1989) (en banc) (processing student applications did not require ability to speak Spanish and Tagalog where only 10% of applicants speak Spanish and 4% Tagalog).

• The Fifteenth Street Garage, 90-INA-52 (Nov. 21, 1990) (only a small number of clients allegedly spoke any of the three required languages).

• Best Roofing Co., Inc., 88-INA-125 (Dec. 20, 1988) (Farsi not necessary where only 12.5% of client base spoke Farsi and the business was roofing).

• Washington International Consulting Group, 87-INA-625 (June 3, 1988) (Spanish not a necessity where only 23% of the client base was affected by the requirement).

The first prong may be met, however, when a significant share of the employer's business is conducted in a foreign language. Raul Garcia, M.D., 89-INA-211 (Feb. 4, 1991).

• Construction and Investment Corp., dba Efficient Air, 88-INA-55 (Apr. 24, 1989) (en banc) (Arabic a business necessity where a significant share of the employer's business operations included negotiating contracts and financial agreements with Middle Eastern clients).

• Coker's Pedigreed Seed Co., 88-INA-48 (Apr. 19, 1989) (en banc) (employer sought certification for a Senior Soybean Breeder; the job was located in Arkansas, but required frequent contact with and travel to Brazil and other parts of South America; thus, the employer required Spanish and Portuguese for the position; the employer established the first prong of the business necessity test because a "good" portion of the work had to be performed in Brazil and Argentina).

• Details Sportswear, 90-INA-25 (Nov. 30, 1990) (a significant portion of the employer's customers required the purchasing agent to speak and write in Maranthi, Hindi, Sindi and Keralese).

• Hidalgo Truck Parts, Inc., 89-INA-155 (Mar. 15, 1990) (evidence of broad scope of Spanishspeaking population contiguous to employer's business situs).

Although the Board has not precisely quantified what constitutes a "significant" enough portion of the business to establish business necessity for a foreign language requirement, the percentages named in the cases has been as low as twenty to thirty percent.

• Mr. Isak Sakai, 90-INA-330 (Oct. 31, 1991) (20 to 30% of business dependent on use of Farsi is significant).

• Dimitri's, Inc., 89-INA-169 (Mar. 14, 1990) (store manager for retail clothing required English, Spanish, Swedish, French and Greek where over 75% of the clientele were tourists, and over half of these tourists were Europeans requiring assistance in their own language).

• But see Washington International Consulting Group, 87-INA-625 (June 3, 1988) (Spanish not a necessity where only 23% of the client base was affected by the requirement).

In other cases in which the employer has been successful in establishing business necessity, the percentage has been in the eighty to ninety percent range.

• Tel-Ko Electronics, Inc., 88-INA-416 (July 30, 1990) (reconsideration en banc) (where 95% of an employer's clients were Korean, a significant portion of the employer's business is performed with clients who use a foreign language and business necessity is established).

• Chris and Cary Enterprises, 88-INA-134 (Sept. 3, 1991) (80% is a significant portion for a bilingual secretary who deals with a large number of customers who speak Chinese).

• Hollytron, 88-INA-316 (Sept. 28, 1989) (sales manager position for electronics retailer required Korean; 80% of revenue from Korean customers and extensive sales promotions conducted in Korean community).

One panel has held that if the employer appears to be credible, and its supporting documentation shows that at least a significant number of clients are of a particular ethnic background, there is no need to document that the clients comprise any particular percentage of its business.

• Raul Garcia, M.D., 89-INA-211 (Feb. 4, 1991), the panel held that the employer established business necessity for the foreign language requirement by submitting copies of 100 bills issued to patients with Spanish surnames together with a statement that the language requirement was necessary to service certain customers. The panel rejected the CO's argument that the employer should demonstrate what percentage of the customers required the Spanish language, and found that a significant number of patients presumably were fluent in Spanish.

• But see Prestige Cars Corp., 88-INA-351 (July 17, 1989), discussed infra Division VI, C, 2, d, which indicates that an employer must provide details such as what percentage of its customers speak a foreign language.

2. Extent to which language is necessary in the transaction of business

Where an employer imposes a foreign language requirement, the second prong of the business necessity test requires the employer to establish that use of the foreign language is essential for the reasonable performance of the job duties. Hence, the employer must not only establish that a significant percentage of clients communicate primarily in a language other than English, see supra Division VI, C, 1, a, but must also establish that use of the language in essential for performance of the job duties in a reasonable manner.

Generally, as to the persuasiveness of evidence documenting the essential nature of communication in a language other than English, see infra Division VI, G, 3.

a. Frequent and constant

One way to show that the use of a foreign language is essential is to show that there is a frequent and constant need to communicate in the foreign language in business transactions. For example, in International Student Exchange of Iowa, Inc., 89-INA-261 (Apr. 30, 1991), aff'd, 89-INA-261 (Apr. 21, 1992) (en banc) (per curiam), the employer established that an assistant to the placement administrator needed to frequently and constantly (ranging from 40 to 80 percent daily) use foreign languages in correspondence and personal or telephonic discussions with the parents of international students.

b. Relationship to the job duties

Simply proving that a significant percentage of the employer's clientele speaks the foreign language is not sufficient to establish business necessity if there is not a relationship between clientele's use of foreign language and job to be performed. In Coker's Pedigree Seed Co., 88-INA-48 (Apr. 19, 1989) (en banc), the second prong of the business necessity test was met where the employee was required, in the performance of his job duties, to communicate with clients or coworkers in the foreign language. In Hidalgo Truck Parts, Inc., 89-INA-155 (Mar. 15, 1990), business necessity was established by evidence of significant customer dependence on Spanish-speaking employees.

In contrast, in Splashware Company, 90-INA-38 (Nov. 26, 1990), while a significant number of the employer's clients required the use of a foreign language, the employer did not establish why an accountant would need to speak that language to perform the job duties for the employer. Moreover, in Best Roofing Co., Inc., 88-INA-125 (Dec. 20, 1988), a percentage of the employer's client base spoke Farsi, but the employee was not required to interact with anyone other than the employer's own employees.

c. Potential loss of customers

A potential loss of some of the employer's customers is not sufficient to establish business necessity for a foreign language requirement,

• Best Roofing Company, Inc., 88-INA-125 (Dec. 20, 1988) (en banc) (12.5% of employer's customers had trouble speaking in English; business was roofing, so it was not obvious that the foreign language was necessary for the business in general).

at least where the market is not dependent on the foreign language speaking customers.

• Weidner's Corporation, 88-INA-97 (Nov. 3, 1988) (en banc) (loss of some potential customers does not establish a business necessity for a foreign language requirement of a salesperson where the market provided many other potential customers).

• But see infra Division VI, E, 2 in regard to the principle stated in several business expansion cases that business necessity does not require a loss to an employer's existing business.

d. Client preference

Where communication in a foreign language is a mere preference of the employer's clients, some Board decisions indicate that an employer's clients' preference to speak a foreign language supports business necessity for a foreign language requirement.

• Mr. Isak Sakai, 90-INA-330 (Oct. 31, 1991) (20 to 30% of the employer's business involved clients who would take their business elsewhere if they could not conduct business in Farsi).

• Raul Garcia, M.D., 89-INA-211 (Feb. 4, 1991) (it was reasonable to require a social worker to be able to converse with patients in their native language even if the patients were bilingual).

• In Jung Gil Choi, C.P.A., 88-INA-254 (Mar. 27, 1990), the employer's client base was comprised almost entirely of Korean-Americans who preferred to, or had to, speak Korean when dealing with their accountants. The panel examined the job duties, which included matters such as preparing balance sheets, advising clients of tax obligations, preparing profit and loss statements, analyzing the records of clients, and advising clients in regard to the preparation of future budgets, and found that the language requirement was essential for performance of those duties in a reasonable manner. Cf. Splashware Company, 90-INA-38 (Nov. 26, 1990) (evidence failed to establish why an accountant would need to speak foreign dialects to perform the job).

• Alywa Computer Corp., 88-INA-218 (Sept. 21, 1989) (noting that the preference was the preference of the employer's clients, not the employer).

• See also International Student Exchange of Iowa, Inc., 89-INA-261 (Apr. 21, 1992) (en banc) (per curiam), aff'g, 89-INA-261 (Apr. 30, 1991), in which the Board declined to rule on whether a client preference alone can justify a foreign language ability requirement because some of the clients could not speak English.

• See also Futures Travels, Inc., 90-INA-234 (July 30, 1991) (vacated pending en banc review), in which the panel held that where 75% of more of an employer's business was done with persons who, though having some ability to speak English, were more at ease speaking one of the languages spoken in India, and who patronized the employer's travel agency largely because they could conduct business there in either Indian language, the language requirement was needed for reasonable performance of the job duties.

Other decisions, however, indicate that the clients' preference to communicate in a foreign language is insufficient to support a finding of business necessity for a foreign language requirement.

• Weidner's Corp., 88-INA-97 (Nov. 3, 1988) (en banc) (employer, a nutrition and health food store, failed to prove that persons from the Indonesian community in California would be "so completely ignorant of the English language that they are unable to appreciate and purchase their food").

• E. G. Hutton & Co., Inc., 89-INA-120 (Mar. 30, 1990) (clients preferred, but did not require, business to be done in foreign language; panel distinguished Construction and Investment Corp., 88-INA-55 (Apr. 24, 1989) (en banc), on the ground that in that case the employer's customers required business to be done in the foreign language).

An employer cannot establish business necessity for a foreign language requirement merely by alleging that it would lose business if it were required to conduct business in English because a percentage of its clientele are fluent only in a foreign language or prefer to conduct business dealings in that language. The employer must provide such details as the portion of its foreign-speaking customers, how many of that portion merely prefer to speak the foreign language, and the reason why communication cannot be in English. See Prestige Cars Corp., 88-INA-351 (July 17, 1989). But see Raul Garcia, M.D., 89-INA-211 (Feb. 4, 1991), which indicates that in certain circumstances there is no need to document that the clients comprise any particular percentage of an employer's business.

e. Employer preference

An employer's preference that a language other than English be used at the workplace cannot support business necessity for a foreign language requirement where use of the language is not essential for the reasonable performance of the job duties. Thus, in Linda Hwang, 89-INA-360 (Nov. 16, 1990), business necessity for a Chinese language requirement for a live-in housekeeper was not established where the employers were fluent in English, their child was newborn, instructions for Chinese cooking could be given in English, in emergency situations English would be preferred for communication, and the responsibilities of answering the door and taking messages did not constitute a significant part of the employee's responsibilities.

• Compare John S. Winnie Ng, 90-INA-134 (Apr. 30, 1991) (job duties of Child Monitor included teaching the employer's children to speak Chinese).

D. Communication with work force or suppliers

An employer may establish business necessity for a foreign language requirement where that language is used by the workforce or suppliers, and use of the language is essential to the performance of the job duties in a reasonable manner. For example, business necessity for a foreign language requirement has been established where the employee -

was to teach other employees new job skills,

Coker's Pedigreed Seed Co., 88-INA-48 (Apr. 19, 1989) (en banc) (Portuguese and Spanish a business necessity where the job was to be performed in Brazil and Argentina and the job duties included teaching employees about scientific breeding skills).

was the link between customers and non-English speaking employees,

Young Cleaners, 88-INA-361 (June 28, 1989) (Korean necessary for an assistant manager where he is the link between customers and Korean-speaking tailors).

had to manage or otherwise communicate with the staff,

Golden City Chinese Restaurant, 89-INA-176 (Jan. 4, 1990) (Chinese a business necessity for a restaurant manager who must constantly communicate with the staff in Chinese).

Hollytron, 88-INA-316 (Sept. 28, 1989) (sales manager position for electronics retailer required Korean; substantial percentage of Korean employees).

Pacific Uniform Manufacturing Corp., 89-INA-334 (Mar. 27, 1991) (manufacturing engineer required to oversee garment plants in Central and South America, to supervise the technical aspects of manufacturing, and to communicate with production personnel).

Spanish Broadcasting System, Co., 88-INA-374 (July 17, 1989) (Spanish a business necessity for recording engineer of Spanish language radio station where 100% of work is conducted in Spanish).

or, had to communicate in the foreign language with suppliers and subcontractors, especially in regard to technical matters.

Tel-Ko Electronics, Inc., 88-INA-416 (July 30, 1990) (reconsideration en banc) (the employer showed that a significant portion of its suppliers require communication in a foreign language in business dealings, and that the employee's duties involved communication with these suppliers).

Florida Ordnance, Inc., 89-INA-106 (Feb. 14, 1990) (required Hebrew for Production Manager who must communicate with suppliers and subcontractors in Israel; 34% of production (with 10% being subcontracted to Israeli companies) is directly for use by Israeli government; technical memoranda written in Hebrew used -employer couldn't risk inaccurate translation; regular telephone conversation in Hebrew with business associates in Israel).

Pacific Uniform Manufacturing Corp., 89-INA-334 (Mar. 27, 1991) (manufacturing engineer required to oversee garment plants in Central and South America, to supervise the technical aspects of manufacturing, and to communicate with subcontractors).

In contrast, business necessity is not established where the employer fails to document that the foreign language is needed in communication with the workforce or the home office.

• Warehouse Food Market, 88-INA-366 (July 26, 1989) (although the employer stated that most of its employees speak Korean, it failed to establish that they do not speak English and that personnel manager needs to use Korean to communicate with employees or in telephone calls to Korea).

Generally, as to the persuasiveness of evidence documenting the essential nature of communication in a language other than English, see infra Division VI, G, 3.

E. Expansion into new markets

1. Applicability of Information Industries test

Employers sometimes contend that a foreign language requirement is justified by its plan to expand its business to new foreign markets. In such instances, the Information Industries business necessity test is applied. See, e.g., Remington Products, Inc., 89-INA-173 (Jan. 9, 1991) (en banc); Cable Car Photo and Electronics, 90-INA-141 (June 5, 1991); Advanced Digital Corporation, 90-INA-137 (May 21, 1991). The test is also applied when the expansion is into a new market within the United States. See, e.g., Azumano Travel Service, Inc., 90-INA-215 (Sept. 4, 1991).

2. Loss to existing business not required

Business necessity does not require a loss to an employer's existing business if the specific qualification is not required is too restrictive; the Act was not designed to prevent U.S. employers from expanding to foreign markets, and there is no legal requirement that the need to use the foreign language exist within the United States. Remington Products, Inc., 89-INA-173 (Jan. 9, 1991) (en banc).

• To the same effect Azumano Travel Service, Inc., 90-INA-215 (Sept. 4, 1991) (in Azumano Travel, however, the panel made a distinction between a hypothetical expansion into a new market and an existing company with extensive experience that is expanding into a new area).

• But see supra Division VI, C, 2, c in regard to cases holding that a potential loss of customers does not support business necessity for a foreign language requirement.

3. Strict scrutiny

Because of the potential for abuse, one panel has announced that it will apply strict scrutiny to documentation presented in cases involving foreign language requirements that are purportedly based on proposed plans for expansion into foreign markets. Cable Car Photo and Electronics, 90-INA-141 (June 5, 1991); Advanced Digital Corporation, 90-INA-137 (May 21, 1991).

• The Advanced Digital panel noted that in Remington Products, Inc., 89-INA-173 (Jan. 9, 1991) (en banc), business necessity for a foreign language requirement was established because it was documented that approximately forty percent of the people in the expansion area do not speak English, and that advertisements would be in the native language. The documentation included a number of internal and external documents, price lists, and foreign language advertisements. In Advanced Digital, however, business necessity was not established because the employer's documentation did not establish a specific expansion plan and the duties and language requirements were vague.

• The same panel, however, found that the employer established business necessity based on expansion for a foreign language requirement in Azumano Travel Service, Inc., 90-INA-215 (Sept. 4, 1991), where the employer's rebuttal included extensive telephone records, correspondence, invoices, reports and memos in English and Japanese; a breakdown of passenger bookings to Japan with specific information of airlines, dates, destinations, etc.; a letter from the employer's president; and a list of the employer's major Japanese-speaking clients. The strict scrutiny standard was not mentioned.

Thus, an employer must show that it has a definite expansion plan, and how the foreign language requirement arises from business necessity. Otherwise, an employer could simply tailor its job requirements to an alien's foreign language capabilities, send some letters of inquiry to an appropriate country, and claim that it plans to expand its business into that area. Cable Car Photo, supra; Advanced Digital Corporation, supra.

G. Evidentiary and procedural matters

1. Requirement that documentation be translated into English

Business necessity cannot be established through documentation which is not translated.

• English Language Enterprises, 88-INA-295 (Nov. 28, 1989) (employer's evidence - documents showing the use of Arabic - failed to establish business necessity because it had not been translated for the Board, and there was no way to ascertain whether the documents actually discussed matters relating to the job: recruitment and counseling of Arabic-speaking students).

2. Documentation written in English

The Board has rejected, at least under the facts of the cases involved, inferences that documentation presented in English to support a foreign language requirement shows that the foreign language is not needed. Thus, in Tel-Ko Electronics, Inc. 88-INA-416 (July 30, 1990) (reconsideration en banc), the fact that some of the employer's evidence, presented to show that communication between the employer's offices and clients involves the use of a foreign language, also included cover memos written in English, did not weaken the employer's demonstration that the foreign language was justified by business necessity. Similarly, in Remington Products, Inc., 89-INA-173 (Jan. 9, 1991) (en banc), the Board held that the fact that evidence submitted to show that a foreign language is needed to expand into new foreign markets was written in English does not indicate that the employer's products can be marketed without the recourse to the languages of the customers' countries.

3. Persuasiveness of evidence documenting essential nature of communication

To meet its burden of proof, an employer must submit evidence to support its assertion that fluency in a language other than English is essential. Splashware Company, 90-INA-38 (Nov. 26, 1990).

Business necessity is not established where the documentation does not support the employer's assertions that a high level of communication or interaction is required in the position offered. For example, business necessity was found not to be established in cases where:

telephone bills failed to establish that a major portion of business was conducted in the foreign language,

Advanced Digital Corporation, 90-INA-137 (May 21, 1991); Newport Pacific Realty & Investment Corp., 88-INA-444 (Aug. 30, 1989).

the language required was not the language principally spoken in the countries of the employer's non-English speaking customers,

H. Stern Jewelers, 89-INA-89 (Jan. 19, 1990) (Portuguese not a business necessity where non-English speaking customers were principally European or Middle Eastern).

the employer had other employees who could make the foreign language communication,

H. Stern Jewelers, 89-INA-89 (Jan. 19, 1990) (Portuguese not a business necessity where 12 other employees could communicate with the home office in Brazil).

the employer admitted that the dialect required was not essential,

Spuhl Anderson Machine Co., 87-INA-564 (May 18, 1989) (evidence that the employer stated that one applicant's knowledge of German, rather than Swiss-German, was sufficient showed that the employer's requirement of Swiss-German was more restrictive than necessary).

the region of the world in which the employer does business indicated that languages other than the one required would be equally appropriate,

Advanced Digital Corporation, 90-INA-137 (May 21, 1991) (need for "fluency with one Middle Eastern language" suggested that an applicant who spoke Hebrew, Arabic or Farsi would be equally qualified for the position).

the employer's case was based on mere assertions of counsel,

Splashware Company, 90-INA-38 (Nov. 26, 1990) (mere assertions from counsel did not document why accountant must write and speak in Cantonese and Mandarin).

See Chapter 11, II (Evidence) for a general discussion of the evidentiary weight of assertions of counsel.

or the employer's case was based on unsupported assertions

Lamplighter Travel Tours, 90-INA-64 (Sept. 10, 1991) (the employer's assertions were inadequate documentation that a travel tour manager needed the ability to read, write and speak Chinese and Spanish; requirements seemed tailored to the alien's qualifications).

Splashware Company, 90-INA-38 (Nov. 26, 1990).

But see Raul Garcia, M.D., 89-INA-217 (Feb. 4, 1991), which recognizes that where a factor or claim is not capable of proof by documentary evidence, such may be provable by credible statements by the persons involved. In Garcia evidence showing that a significant number of patients had Spanish surnames was sufficient to support the employer's assertion that a Spanish language requirement for a social worker was justified by business necessity.

and the requirement appeared to be tailored to the alien's qualifications.

Lamplighter Travel Tours, 90-INA-64 (Sept. 10, 1991).