California: An English-only policy must qualify

[Harold Schiffman]

May 27, 2008


An English-only policy must qualify


Employers these days are fortunate to have employees hailing from all
over the world. In order to coordinate a cosmopolitan staff with the
business needs of the workplace, employers sometimes find it necessary
to establish an English-only policy. Employers with fewer than five
employees are not restricted in their ability to implement such a
policy; however, the California Department of Fair Employment and
Housing provides that employers of five or more employees may
implement such a policy only if:


The language restriction is enforced because of a justifiable business
necessity; and


The employer notifies the employees of the circumstances and the time
that the English-only restriction must be observed; and


The employees are informed of the consequences of failure to comply
with the policy.

The FEHA defines "business necessity" as an "overriding legitimate
business purpose such that:


The language restriction is necessary to the safe and efficient
operation of the business;


The language restriction effectively fulfills the business purpose it
is supposed to serve; and


There is no alternative practice that would accomplish the business
purpose equally well with a lesser discriminatory impact. In order to
meet the "business necessity" test, the employer must be able to prove
that the need for the English-only policy takes precedence over the
employee's desire to speak his or her mother tongue and is not being
implemented for discriminatory purposes. For example: The business
necessity test cannot be met by an employer who requires an employee
to speak English when he or she works in an office alone and cannot be
heard outside that office; or in a situation where all of the
employees speak the same language and have no contact with customers
or patients who speak English.

If, on the other hand, the knowledge of English is a necessity because
a particular job requires communication with clients or vendors who
speak only English, the employer would be justified in enforcing an
English-only policy during the time when that employee is actually
working. Employers would be hard-pressed to support a policy that
requires their employees to speak English while they are on their
legally mandated rest and meal periods or while walking to and from
their vehicles before and after work. Prior to implementing an
English-only policy, we recommend that employers analyze the jobs to
which the policy would apply so that they can be certain that the
policy is necessary, non-discriminatory and meets the business
necessity test.


http://thecalifornian.com/apps/pbcs.dll/article?AID=/20080527/BUSINESS/805270329/1046
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