Oregon: English-only rule might be discriminatory

[Harold F. Schiffman]

 Tuesday, May 15, 2007 Last modified Sunday, May 13, 2007 11:24 PM PDT


BOLI: English-only rule might be discriminatory

By the Oregon Bureau of Labor & Industries

Question: In the department I manage, weve had problems with a few
employees who insist on speaking Spanish at work. Other workers are upset
because they feel excluded from conversations, and they suspect the
Hispanic employees are gossiping about them. These Hispanic employees are
bilingual and do speak perfectly good English. Wed like to prohibit
employees from speaking any language other than English at work. Is this a
problem?

Answer: Quite possibly. Your proposed English only policy may create even
more controversy among employees, and it may also violate discrimination
laws. Its illegal to discriminate based on customer preference or
co-worker preference. Therefore, its not wise to discipline employees for
speaking a foreign language or to set rules restricting their speech
simply because other workers are suspicious or uncomfortable. Rather than
barring all foreign languages in the workplace, you can address individual
concerns by asking employees to treat each other with respect.

Oregon and federal civil rights laws dont provide a protected class for
language, but litigation based on language discrimination in the workplace
is brought under the category of race or national origin discrimination.
The theory supporting such a claim is that theres a strong correlation
between a language and its national origin group, and that ones native
language is intrinsic to ones ethnic identity. An employee subject to an
English-only rule might also raise constitutional free speech claims, if a
company is unduly limiting personal speech.

A federal court in Texas recently awarded more than $700,000 to a group of
employees of a long-distance phone company who were fired for protesting
an English-only policy. The court found that the companys rule served no
justifiable business purpose and that its actions constituted disparate
treatment of Latino employees based upon their national origin, in
violation of Title VII of the Civil Rights Act. Complaints against
companies based on English-only rules have dramatically increased in
recent years. Hundreds of these complaints have been filed with the
federal Equal Employment Opportunity Commission.

EEOC guidelines bar English-only rules unless the employer can demonstrate
a clear business need. If you implement such a policy, you should be able
to explain why its necessary to running your business perhaps for safety
or efficiency. Consult an employment attorney before drafting an
English-only policy. Be certain the policy is narrowly tailored to address
a business purpose. And stay away from highly suspect blanket policies
that apply not just to regular work time, but also to time when an
employee is on a break or in the parking lot.

For more information on issues affecting Oregon employers, visit the
Bureau of Labor and Industries Web site at www.oregon.gov/boli/ta or call
971-673-0824.

http://www.gazettetimes.com/articles/2007/05/14/news/business/8biz04_boli.txt
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