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We're currently hiring for a software engineer position and I've been charged with advancing candidates to the in-person interview stage. We've gotten a number of applications from people who have strong development backgrounds but are recent immigrants from India and China and are very clearly English-as-a-Second-Language speakers, ESL.

We're a really small company and our successful candidate would be the lone developer. In addition to programming, they'll also have to occasionally write content as well as make themselves clearly understood to non-tech people.

As such, I'm leaning towards disqualifying anyone whose English comes across as not being totally fluent. Just a note, I'd disqualify native speakers who wrote poorly as well, but for some reason the fact that most of the applications that would be disqualified on these grounds are non-native speakers feels a little wrong to me.

I'd love for someone to weigh in on the legality of disqualifying obviously ESL applicants.

closed as off-topic by Michael Grubey, jcmeloni, gnat, Jim G., Adam V Jun 16 '14 at 13:55

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    Please explain ESL - you have an international audience here. Adding a country tag could be wise too. – Jan Doggen Jun 11 '14 at 9:02
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    isn't this a legal Q? and therefore off topic – Pepone Jun 11 '14 at 14:07
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    It's not ESL you're eliminating by, it's fluency in English. There are fantastic answers below, but I felt the need to point out that you may have looked at ESL individuals and not realised it; there are a couple ESL persons in my office who speak French as their primary language, and aside from the increasingly rare "what's the word for..." these individuals often speak and write English more eloquently than most. I, personally, would avoid just outright eliminating ESL persons though, going on a case-by-case basis, only removing completely illegible candidates from the pool. – Kver Jun 11 '14 at 15:11
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I am not a lawyer, but I'd say you should make sure that it's not the ESL that's the issue but the ability to write well.

There are plenty of people who can't write intelligible English despite being raised in the UK or US. There are also some/many people who don't speak all that fluently, but may still be able to write well. (I, personally, have a noticeable accent when speaking English and occasionally stumble over words. Hearing me speak, you'd probably know that I'm ESL - but my writing rarely garners that reaction.) So don't focus on whether they're "obviously ESL", instead focus on their written language abilities.

A lot of places will have some form of programming test for developers. You could just as well have a test of asking them to write the type of documentation you want, and have a non-technical user at your company review it. (If you avoid giving the reviewer any information about the applicant, you are further limiting the risk of accusation of discrimination.)

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    @JoeStrazzere is right just discarding all ESL candidate's irrespective of their fluency in English is obviously discriminatory – Pepone Jun 11 '14 at 14:07
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    I'd add one thing - just make sure that whatever fluency you expect is a result of careful screening and not personal bias. For example, Indians speaking Indian accented English well are just as clear as people with some of the more ... unique ... American or British accents. – bethlakshmi Jun 12 '14 at 20:06
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I'm not sure legal questions are on-topic here. The answer will vary by time and location.

As for the "correct" way to screen candidates in this situation, I'd suggest adding it very clearly to the list of requirements and duties, such as:

  • The candidate will have very strong written/spoken English skills, as they will be required to write and create content in English, with little to no supervision.

I don't think anyone could get upset over discrimination in this case as you've clearly stated that in addition to the normal technical nature of programming, the job will also require effective non-technical writing. And there are some ESL students I've seen who probably could meet or exceed your requirements!

Requesting a writing sample (either with the resume or after you've seen their resume and want to test them before an interview), as others have suggested, might also work. You could ask them to do something simple, such as write a brief (no more than 0.5 page) summary of the last movie they saw, or what they did over the weekend. Or if they have a blog where they write, they could provide a link to that.

  • A resume is not the best lone sample of a person's writting ability. There are to many services that will help you write a resume, I would expect ESL speaking applicants to use those services, to convert their resume into other languages. As I certainly would use one if I was submitting my own resume in Spanish, French, ect personally if I spoke those languages. The point would be to request a writting sample and see how well they are able to communicate in a given language outside of their resume. – Donald Jun 16 '14 at 13:38
  • @Ramhound: I agree. I don't think I suggested that a resume should be taken as a writing sample, but a writing sample should be submitted in addition to a resume. – FrustratedWithFormsDesigner Jun 16 '14 at 13:50
  • I just wanted to point out, while you can use a resume to rule out people if its incorrect, the fact its correct is not a sign by itself, of an ability to communicate at the required level. Even as somebody who cannot write in another language except English, I used a service to properly write my resume, but that was more about having an effective resume. I should add I am able to effectively communicate in English, I had a specific goal, and was attempting to elminate the clutter in my resume. – Donald Jun 16 '14 at 13:54
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ESL - English as a Second Language

Having cleaned up my share of poorly written, poorly organized posts from native as well non-native speakers on this site, my attitude is pretty much "a pox on both your houses".

Since you are mainly interested in the applicant's ability to communicate clearly, request a writing sample. You need not request a writing sample from those who sent you poorly written resumes and cover letter.

I am not going to answer your question as to whether it's legal to discriminate against ESL applicants. I am not a lawyer. The US civil rights statutes say nothing about discriminating on the basis of ESL but they do outlaw discrimination on the basis of national origin. In addition, IRCA (Immigration Reform and Control Act of 1996) doesn't say anything about discriminating about ESL either but specifically outlaws discrimination against non-citizens with proper authorization to work. Related story: John Jay Accused of Bias against non-citizens. In my case, English is not my second or even third language, it's my fourth - being born as a non-European in a Western European country will do that to you :) And it's obvious from my name that I am foreign-born and not so obvious that I am American.

I think you should sidestep the whole discrimination issue/minefield by requiring a writing sample from the candidates you are interested in. Talking to the candidates would allow you to do further filtering.

  • Why does "writing well" matter more than actual fluency in the language in day to day conversation? – Pepone Jun 11 '14 at 14:05
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    @Pepone Because part of the job is writing things. In conversation, there is a chance to ask and clarify and work around a missing part of the vocabulary, and grammar need not be perfect in order for the speaker to be understood. In writing, these opportunities are missing. – Jenny D Jun 11 '14 at 14:16
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    @Pepone Well, for one thing, most of civilizations' greatest thinkers are dead and thus in no shape to converse with us. But we can still connect with then through their writings :) OK, jesting aside, the way someone writes tells a lot about that person's ability to think in a clear, disciplined, systematic fashion. Well put-together writing can only originate from a well put-together mind :) This is not to say that spoken langugage is not important. I was a great fan of the theater in my time, where written, spoken and body language all come together to create a great whole :) – Vietnhi Phuvan Jun 11 '14 at 14:33
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Like other posts you should focus on requiring effective communication in English both written and verbal to perform the job, but be careful you're not going beyond the job requirements.

If you set requirements too high or aren't really required for this job that can be perceived as discrimination, you could get into trouble. Yes, they need to speak so they can communicate and be understood, but if you indicate that an accent is annoying or "rolling your r's" is unacceptable, that could be trouble. Of course no one says this to the person's face, but someone may notice a trend.

There were times when practices to keep females out of the work place were applied like requiring applicants to pick up heavy boxes or other test of strength/endurance for a purely office job.

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