None; deleted because list mgmt system doesn't like it!

[Harold Schiffman]

All:

I have tried twice to forward this message, but it keeps getting
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FREE SPEECH AND ENGLISH-ONLY POLICIES IN THE WORKPLACE

By Jennifer Brown Shaw and Matthew J. Norfleet

Last week's free speech ruling from the U.S. Supreme Court in the
"Bong Hits 4 Jesus" case reminds us that employers, like educational
institutions, have the right to regulate speech in the workplace.
Private sector employers are unrestricted by the First Amendment,
which applies only to government action. But there are legal
restrictions applicable to private employers as well. One such
restriction that is often misunderstood by employers is
single-language policies. Usually they're English-only policies, but
the same rules could apply to any employer's policy limiting the
language employees may speak on the job.

How the Workplace is Like High School

In Morse v. Fredrick, the United States Supreme Court ruled that a
school district could limit a student's speech when he was attending a
school-sponsored event. The school permitted its students to attend
the Olympic Torch Relay as it passed through Juneau, Alaska. One
student brought and displayed a 14-foot banner that said "Bong Hits 4
Jesus." The school's principal believed the banner promoted illegal
drug use. The Court agreed that the principal's interpretation was
defensible. Because the student was attending a school sponsored
event, the principal had the right to apply the school's policy that
students may not advocate illegal drug use during what essentially was
class time.

A manager and a high school principal have similar interests in
ensuring that everyone – employees or students – gets along without
offending one another. Therefore, both are likely to prohibit
"fighting words," or comments that are likely to stir racial tensions.
Employers must ensure speech at the workplace does not violate
anti-harassment or discrimination laws. Employers also have a
bottom-line interest in creating an environment that makes their
customers comfortable. Imagine the headache a retail manager would
have if an employee decided to unroll a 14-foot banner that said "Bong
Hits 4 Jesus" in the workplace.

Because we value free speech so strongly, many Americans do not
realize that the First Amendment applies only to government conduct;
employees have no right to free speech under the First Amendment. The
California Constitution is broader and regulates certain private
activities, but not in this context. Employers may restrict employees
in what they say while on the clock; almost everyone who receives a
paycheck has been told to stop talking and get back to work, at least
once.

Limits of the Limits

An employer's right to limit speech is not unlimited. For example,
employers are prohibited from restricting employees from talking about
forming a union, from engaging in political activity, or from
complaining about working conditions, among other things, but those
are subjects for another column.

The employer also may not use its power to control speech to penalize
employees because of their national origin. An employee's native
language is closely connected to their national origin, a protected
category under Title VII of the Civil Rights Act of 1964 and
California's Fair Employment and Housing Act ("FEHA"). Just as it is
illegal for an employer to say "we don't hire Chinese applicants," it
would be illegal to say "we don't hire applicants who speak
Cantonese," because it would have the effect of excluding many Chinese
employees because of their national origin.

On the other hand, if an employer does business in English, it has a
legitimate business reason to want employees who speak and understand
sufficient English to do their jobs and communicate with their
co-workers, supervisors and customers.

It is also illegal to maintain segregated employment in which
employees are separated by race or national origin. Therefore, an
employer may communicate with its employees in English or as many
languages as necessary, but it may not separate work groups by race or
national origin.

When Can an Employer Tell an Employee What Language to Speak?

The subject of English-only rules in the workplace can create very
strong feelings. Some may believe it is rude to speak in a language
that others present do not understand. At the same time, speakers of
languages other than English may believe that complaints about
speaking another languages stem from racism or unfounded suspicion of
what is being discussed.

U.S. Equal Employment Opportunity Commission ("EEOC") regulations
state that a restriction to speaking English at all times
"disadvantages an individual's employment opportunity on the basis of
national origin." When applied at all times, EEOC believes that
-English-only rules "create an atmosphere of inferiority, isolation,
and intimidation based on national origin which could result in a
discriminatory working environment."

When applied only at certain times (for example, while a disc jockey
is making radio announcements on an English-language station, or when
speaking to a customer, or when a nurse gives a report of a patient's
health condition), the EEOC regulations state that English-only rules
are permissible only "where the employer can show that the rule is
justified by business necessity."

Under the FEHA, it is an unlawful employment practice to prohibit the
use of any language in the workplace unless the restriction is
justified by business necessity and the employer has notified its
employees of the "circumstances and the time when the language
restriction is required to be observed and of the consequences for
violating the language restriction." Cal. Gov. Code § 12951. "Business
necessity" is defined as "an overriding legitimate business purpose
such that the language restriction is necessary to the safe and
efficient operation of the business, that the language restriction
effectively fulfills the business purpose it is supposed to serve, and
there is no alternative practice to the language restriction that
would accomplish the business purpose equally well with a lesser
discriminatory impact."

The leading federal case in our jurisdiction on whether an employer
may require employees to speak English while at work is Garcia v. Spun
Steak Co., decided by the federal Ninth Circuit Court of Appeal in
1993. The Spun Steak Company adopted an English-on-the-job rule
(excluding breaks and lunch time) to protect its non-Spanish-speaking
employees from being ridiculed in Spanish without their knowledge. Two
bilingual employees were reprimanded for violating the rule and
brought a lawsuit, although it appears accommodation was made for two
other employees who could only speak Spanish. The Court disagreed with
the EEOC regulations and held that an English-only rule does not
always violate Title VII.

The decision made a large impact on both sides of the Official English
debate, but actually provides little guidance for employers seeking to
comply with the law at the same time as efficiently running their
business. Although it disagreed with the EEOC's position that an
employer may never adopt an English-only rule, the court did not say
they were always legal, either. Further, neither the court nor the
EEOC regulations discuss what business justifications are sufficient
to support an English-only policy.

Spun Steak did offer a justification; that non-Spanish speaking
employees felt -- rightly or wrongly because they admittedly did not
speak Spanish – that they were being insulted in Spanish. The
English-only policy at least required employees to insult each other
openly. In addition, the company noted that there were some safety
benefits to using a language common to most employees and the
on-premises USDA inspector. The court did not give permission for an
employer to use an English-only policy to harass, ridicule, or
discourage non-English speaking employees.

There are few cases evaluating English-only policies. Employers in
those cases have pointed to safety issues, customer service, and other
business-related justifications for their policies. In other kinds of
cases, courts have concluded that helpfulness, politeness and
approachability to customers, and stemming hostility between
employees, are valid business necessities that support employers'
rules requiring English to be spoken, at least during certain times.
In one decision, the employer was found to have acted lawfully by
terminating an employee who was not bi-lingual, as required by its
policies.

Should Your Business Have a Common Language Policy?

Employers wishing to avoid legal challenges to English-only or other
language-based policies should carefully evaluate their business
needs. Some businesses will want or need to operate in more than one
language. In those cases, proficiency in the languages used should be
considered just like any other job qualification. Just as it would be
presumptuous for a restaurant to assume that a French applicant
automatically knows how to cook soufflés, an employer should not
assume that an applicant can speak a language simply because of his or
her national origin.

In other cases, an employer will need to ensure its managers and
employees can communicate with each other and customers or patients
clearly. A rule that requires English at all times regardless of the
work performed by the employee is probably too strict under the FEHA.
The FEHA also requires the employer to consider whether a less
restrictive policy would serve the same purpose. A rule that asks
employees to treat each other with courtesy and address managers,
coworkers, and customers in a language they understand likely is
permissible.

http://shawvalenza.com/publications.php?id=53


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