[lg policy] Q&A with Kristin Simpsen: English-only policies may discriminate, EEOC warns

[Harold Schiffman]

 Q&A with Kristin Simpsen: English-only policies may discriminate, EEOC
warns
[image: Paula Burkes]
by Paula Burkes <https://newsok.com/more/Paula Burkes>
Published: Wed, June 6, 2018 5:00 AM
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Kristin Simpsen is a labor and employment attorney with McAfee & Taft.
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*Q: A video recently went viral that showed a restaurant patron ranting
about how he thought the Manhattan eatery's “staff should be speaking
English,” not Spanish. Is there anything that prevents an employer from
requiring its employees to speak English?*

*A:* Interestingly, the Equal Employment Opportunity Commission (EEOC)
recently filed suit in the Southern District of California alleging that
Albertsons Companies Inc. violated federal law when it implemented a policy
that prohibited Hispanic employees from speaking Spanish around non-Spanish
speakers, including when they spoke to Spanish-speaking customers and
during breaks. The EEOC also contends that the employer's managers publicly
reprimanded Hispanic employees for speaking Spanish. Finally, the EEOC
alleges that the employer acted improperly by failing to take corrective
action after multiple employee complaints. In the lawsuit, the EEOC seeks
injunctive relief aimed at preventing discrimination in the future. The
EEOC also seeks back pay and compensation for non-pecuniary losses for a
class of employees who were allegedly discriminated against by the
implementation of this policy.

*Q: What is the EEOC's position on English-only language policies?*

*A:* Title VII of the Civil Rights Act doesn't specifically prohibit
English-only language policies. Nevertheless, the EEOC has taken the
position that English-only language policies have the potential to
discriminate on the basis of national origin, which would be a Title VII
violation. The EEOC's guidance provides that a blanket requirement that
employees speak only English is presumed to violate Title VII.
Language-restrictive policies may be utilized “only to those specific
employment situations for which they are needed to promote safe and
efficient job performance or business operations.” The EEOC has stated that
the following business necessities could justify an English-only policy:
Communications with customers, co-workers, 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; and to enable
a supervisor who only speaks English to monitor the performance of an
employee whose job duties require communication with co-workers or
customers.

*Q: Can employers make employment decisions based on an employee's accent?*

*A:* According to the EEOC, an employer only should make an employment
decision based on an individual's accent if the person's accent “interferes
materially with job performance.” To satisfy this standard, the EEOC states
that the employer must show that effectively speaking English is required
to perform the job duties, and that the individual's accent materially
interferes with his or her ability to communicate in spoken English.

*Q: What does the EEOC's guidance mean for employers?*

*A:* Employers may adopt and enforce an English-only policy as long as the
policy was not put in place for the purpose of discriminating against
employees on the basis of their race or national origin, and the policies
were adopted to further a legitimate business interest of the employer. If
an employer chooses to implement such a policy, the employer still should
permit employees to speak their native language where English isn't
required for legitimate business purposes, such as when the employee is on
break. Importantly, employers must give sufficient notice of a restrictive
language policy by informing employees about the new language policy and
the consequences for violating it. Finally, it's important to remember that
because the EEOC strongly disfavors English-only policies, the policy will
be aggressively scrutinized if challenged.


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 Harold F. Schiffman

Professor Emeritus of
 Dravidian Linguistics and Culture
Dept. of South Asia Studies
University of Pennsylvania
Philadelphia, PA 19104-6305

Phone:  (215) 898-7475
Fax:  (215) 573-2138

Email:  haroldfs at gmail.com
http://ccat.sas.upenn.edu/~haroldfs/

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