US: An unacceptable practice - English only in the work place

[Harold Schiffman]

An unacceptable practice - English only in the work place

Can you require your employees to speak only English in the Workplace?
Between 1990 and 2000, census data show that the portion of Americans
with a primary language other than English rose from 14 to 20 percent
of the population. Thus, chances are, as an employer, you have
employees whose primary language is other than English. Naturally,
sensitivities may arise in the workplace. Shared language is often
essential to collaboration and customer service. Indeed, the inability
to speak the same language may impair performance or safety.

Thus, it may be very tempting to create an "English Only" policy at
your company. Although employers are barred from discrimination on the
basis of national origin, "English Only" workplaces are not strictly
illegal according to the Equal Opportunity Commission—EEOC. However,
bear in mind that the EEOC is suspicious if an employer establishes an
across-the-board "English Only" policy, without a valid business
reason. Increasingly, these rules are successfully challenged in the
courts. For example, The EEOC sued on behalf of 6 hairstylists working
at a hair salon franchise. The hairstylists won $360,000 because they
were forbidden to speak Spanish, even with Spanish customers.

Therefore, if you are contemplating creating an "English Only" policy,
it is important that you become familiar with the EEOC's Rules to
ensure that such a policy does not constitute prohibited
discrimination. Title VII permits employers to adopt "English Only"
rules under certain circumstances. An "English Only" rule can only be
adopted for a "business necessity." Such a rule would be unlawful if
it were adopted with the intent to discriminate on the basis of
national origin or merely because the person had an accent.
Additionally, a policy that prohibits some but not all of the foreign
languages spoken in a workplace, such as a no-Chinese rule, would be
unlawful.

An "English Only" rule is justified by "business necessity" if it is
needed for an employer to operate safely or efficiently. For example,
an employer may be justified in requiring its workers to speak English
in order to communicate with coworkers or supervisors who only speak
English. Additionally, an employer may be justified in requiring that
all employees speak English in an emergency situation or for
cooperative work assignments.

Therefore, even though your employees chatting with each other in a
foreign language during their work breaks can feel disruptive,
uncomfortable and exclusionary; you may not be justified in
establishing an "English Only" rule.
In evaluating whether to adopt an "English Only" rule, an employer
should weigh the business justifications for the rule against possible
discriminatory effects of the rule. While there is no precise test for
making this evaluation, the EEOC recommends considering the following:

Evidence of safety justifications for the rule

Evidence of other business justifications for the rule, such as
supervision or effective communication with customers

Likely effectiveness of the rule in carrying out objectives; and

English proficiency of workers affected by the rule

The EEOC also recommends that an employer consider any alternatives to
an "English Only" rule that would be equally effective in promoting
safety or efficiency.

http://bwlaw.blogs.com/employment_law_bits/2008/11/an-unacceptable.html

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