[lg policy] English-Only Policies in the Workplace: Are They Legal? Are They Smart?

[Harold Schiffman]

English-Only Policies in the Workplace: Are They Legal? Are They Smart?


As I cast my ballot in this year’s election – a ballot that in my home
of Broward County, Florida is printed in English, Spanish, and Creole
– I was reminded of an employment law issue that often leaves
employers scratching their heads:  Can employers require their
employees to speak English in the workplace, or must they allow
employees to speak in their native tongues?

The answer, like the answer to so many legal questions, is:  “it
depends.”  English-only policies are unlawful if adopted for a
discriminatory purpose or if applied to one minority group but not
another.  In addition, even if an English-only policy is adopted for
nondiscriminatory reasons and applied uniformly, the Equal Employment
Opportunity Commission (EEOC) and some courts take the position that
such rules burden national origin minorities because they prevent many
members of these groups from speaking the language in which they are
best able to communicate.  According to this view, English-only rules
may only be justified by “business necessity.”  While some courts have
adopted a less stringent standard, the safe approach for employers is
to either refrain from adopting an English-only policy, or ensure that
it is justified by business necessity.

According to the EEOC, the following are some situations in which
business necessity would justify an English-only rule:

    For communications with customers, coworkers, or supervisors who
only speak English
    In emergencies or other situations in which workers must speak a
common language to promote safety
    For cooperative work assignments in which the English-only rule is
needed to promote efficiency
    To enable a supervisor who only speaks English to monitor the
performance of an employee whose job duties require communication with
coworkers or customers

Even if justified by business necessity in these situations, an
English-only policy should not be applied to casual conversations
between employees when they are not performing job duties.

And make no mistake; employers with English-only policies that do not
pass legal muster are likely to find themselves in the cross-hairs of
the EEOC.

Take the recent case of Delano Regional Medical Center (DRMC), an
acute care hospital in California.  According to the EEOC, DRMC had an
English-only policy that applied only to Filipino-American staff who
spoke in Filipino languages like Tagalog or Ilocano; the policy did
not apply to Spanish-speaking workers.  The policy required
Filipino-American employees to speak in English except when speaking
to a patient with other language needs or during break time.
Supervisors, staff, and even volunteers allegedly were encouraged to
act as vigilantes and berate and reprimand Filipino-American employees
who failed to comply with the policy. The EEOC brought a class action
on behalf of approximately 70 Filipino-American workers.  In September
of this year, facing allegations that its policy was unlawful and
subjected the Filipino-American employees to national origin
discrimination and a hostile work environment, DRMC agreed to pay
$975,000 to settle the case.

Similarly, last year the EEOC reached a $2.44 million settlement of a
class action lawsuit against the University of Incarnate Word (UIW) in
San Antonio, Texas, on behalf of 18 Hispanic housekeepers who were
subjected to an English-only rule and allegedly harassed due to their
national origin.  According to the suit, some of the UIW employees
spoke little or no English, others testified that Spanish was their
primary language even though they were born in the United States,
while other employees were bilingual. The workers complained that they
had difficulty complying with the rule because they did not speak
English or unconsciously lapsed into Spanish when conversing with
their peers.

For monolingual people like myself, dealing with a foreign language
can be confusing.  The addition of Spanish and Creole to my Broward
County election ballot stretched the ballot to 12 mostly
incomprehensible pages!  For monolingual employers and supervisors,
the adoption of an English-only policy may seem perfectly reasonable,
and may even be a business necessity.  But before adopting an
English-only policy, employers should carefully consider the necessity
of such a policy, the risks of a legal challenge, and the effect on
employee morale.  An English-only policy might only create more
problems.

http://www.forbes.com/sites/richardtuschman/2012/11/15/english-only-policies-in-the-workplace-are-they-legal-are-they-smart/

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