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Can We Require Our Workers to Speak English?

Question: Can an employer require its employees to speak only English while at work? Our company recently enacted an English-only rule and several of our employees have complained. I am wondering if this policy needs to be changed.       

Monday, November 19, 2012
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Answer: There are a number of reasons why an employer may wish to implement an English-only policy for employees, including perhaps workplace harmony, customer service concerns, and the safety of both workers and the public. However, such a policy may also raise equally important concerns for an employer about the possible discriminatory effects of restricting employees from conversing in their language of choice, particularly in the case of immigrant workers (or otherwise non-English speaking workers) who may struggle with communicating exclusively in English.  As such, an employer should proceed carefully when considering implementing a language-restrictive policy in the workplace.

Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits employers from discriminating against an individual on the basis of race, color, religion, sex, or national origin, as well as limiting, segregating, or classifying an employee "in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee" based on one of the above-stated protected characteristics. 42 U.S.C. § 2000e-2(a). While language itself is not a protected class, Title VII does "prohibit the use of language as a covert basis for national origin discrimination." Reyes v. Pharma Chemie, Inc., No. 8:11 CV 228, 2012 U.S. Dist. LEXIS 128990, at *17-18 (D. Neb. Sept. 11, 2012).

Courts have reached differing conclusions on the issue of whether English-only policies amount to discrimination under Title VII. In Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993), cert. denied 512 U.S. 1228 (1994), the Ninth Circuit considered a policy requiring bilingual workers to speak only English while on the job, while allowing other languages to be spoken during breaks and employees' personal time. Spanish-speaking employees argued that the policy was discriminatory because it denied them the ability to express their cultural heritage, denied them a privilege of employment enjoyed by monolingual English speakers, and created an atmosphere of inferiority and intimidation.

The Garcia court rejected the plaintiff-employees' arguments, stating that Title VII "does not protect the ability of workers to express their cultural heritage at the workplace," but is "concerned only with disparities in the treatment of workers."  Id. at 1487. The court found that, while the ability to converse "may in fact be a significant privilege of employment," Title VII does not require that the privilege be defined by the ability to speak in the language of an employee's choice. Id. Further, as the employees were all bilingual, the court found that "[t]here is no disparate impact with respect to a privilege of employment if the rule is one that the affected employee can readily observe and nonobservance is a matter of individual preference." Id. (internal quotations and citation omitted). The court further opined that "Title VII is not meant to protect against rules that merely inconvenience some employees, even if the inconvenience falls regularly on a protected class."  Id. at 1488. The court did note, however, that the conclusion may be different in the case of non-bilingual employees because an English-only rule would then prevent such employees from enjoying the privilege of conversing on the job and therefore "might well have an adverse impact." Id.

In contrast, in EEOC v. Premier Operator Servs., Inc., 113 F. Supp. 2d 1066 (N.D. Tex. 2000), the district court struck down an English-only policy that stated all conversations on workplace premises, including those during breaks or personal time, were to be in English, except while addressing customers who speak other languages.  Id. 1069-70. The court considered evidence that bilingual individuals often unconsciously switch from English to their primary language "when speaking informally with fellow members of their cultural group," and that such employees therefore "were faced with the very real risk of being reprimanded or even losing their jobs if they violated the English-only rule, even if such non-compliance was inadvertent."  Id. at 1069-70.  The court further found that the defendant-employer presented insufficient evidence to establish that there was any business necessity for the policy as implemented. Id. at 1070. The court noted that, even if it were "to assume that office 'harmony' [was] properly considered to be a business necessity that would justify an English-only policy," there was no credible evidence on the record that there was any discord among employees so as to necessitate a language-restrictive policy.  Id. The court therefore concluded that "the speak English-only policy as implemented and enforced . . . was a tool by which discrimination based on national origin was effected." Id. at 1071.

English-only workplace rules have also been addressed by the Equal Employment Opportunity Commission in guidelines discussing language-restrictive rules in the workplace and their potential correlation with discrimination on the basis of national origin. See 29 C.F.R. § 1606.7. The guidelines draw a distinction between English-only policies that apply at all times in the workplace and those that are applied only at certain times. For policies requiring English at all times, the EEOC has stated that such a rule constitutes a "burdensome term and condition of employment" as "[t]he primary language of an individual is often an essential national origin characteristic." Id. at § 1606.7(a). The guidelines further state that a blanket English-only policy "disadvantages an individual's employment opportunities on the basis of national origin" and "may create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment." Id. As a result, the EEOC has stated that it will "presume that such a rule violates Title VII and will closely scrutinize it." Id.

For English-only rules that are applied only at certain times, however, the EEOC has stated that "[a]n employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity." Id. at § 1606.7(b). The guidelines go on to state that "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." Id. at 1606.7(c). 

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The above cases and EEOC guidelines demonstrate that there is no one clear-cut answer to the question of whether an English-only workplace policy would withstand a legal challenge under federal or state discrimination laws. That said, for those employers who are thinking about implementing such a policy or who have implemented such a policy, below are some suggestions that you may want to consider: 

*     Narrowly tailor the policy to achieve only the legitimate business goals associated with implementing such a policy while still allowing bilingual employees the ability to converse in their language of choice as often as is viable.

*     Avoid blanket policies that require employees to restrict themselves to English even when on breaks, at lunch, or during personal phone calls.    

*     Clearly identify the legitimate business reasons for implementing the policy in question and consult with legal counsel to ensure that the reasons are based upon legitimate, documentable workplace concerns and that the reasons for the policy can be easily explained/defended if challenged. For example, a stated goal of improving workplace safety where language confusion has in the past, or is likely in the future to increase the potential for dangerous on-the-job errors is more likely to qualify as a legitimate business necessity than, for example, a generalized desire to improve "workplace harmony."

*     Provide full and fair notice of the rules and expectations under the policy and ensure that the policy is enforced equally for all covered employees.  

*     Consider drafting and enforcing the policy in such a way that makes clear that only willful violations will result in warnings and/or discipline. This approach may help to avoid claims of discriminatory enforcement based upon an accidental "lapse" by an employee into his or her native or primary language.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

 

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