[lg policy] Don't adopt English-only workplace policy without clear business need

Harold Schiffman haroldfs at gmail.com
Mon May 28 11:17:30 EDT 2018


<?subject=Don't adopt English-only workplace policy without clear business
need - The San Diego
Union-Tribune&body=http%3A%2F%2Fwww.sandiegouniontribune.com%2Fbusiness%2Feconomy%2Fsd-fi-eaton-20180528-story.html%23share%3Demail~story>
<?subject=Don't
adopt English-only workplace policy without clear business need - The San
Diego
Union-Tribune&body=http%3A%2F%2Fwww.sandiegouniontribune.com%2Fbusiness%2Feconomy%2Fsd-fi-eaton-20180528-story.html%23share%3Demail~story>
Don't adopt English-only workplace policy without clear business need
Dan Eaton

The U.S. Equal Employment Opportunity Commission is suing Albertsons in San
Diego federal court over what the agency calls the grocer’s “unwritten
English-only policy, which Albertsons implemented as essentially a no
Spanish policy” at its Lake Murray Boulevard store. The EEOC charges
Albertsons with violating the federal employment discrimination law, Title
VII, which bars national origin discrimination.

The lawsuit was brought on behalf of several Hispanic employees who,
according to the complaint, were reprimanded for speaking Spanish, even on
their breaks and for speaking to Spanish-speaking customers. Albertsons
allegedly instructed its employees in a 2012 training video not to speak
Spanish whenever a non-Spanish speaking person was present.

Anna Park, a lawyer with the EEOC’s Southern California office, said in a
press release that “[t]argeting a particular language for censorship is
often synonymous with targeting a particular national origin, which is both
illegal and highly destructive to workplace morale and productivity.”

In an emailed response to a Washington Post reporter’s inquiry, an
Albertsons spokeswoman said “[t]he company does not have, and has never had
a policy in which such language usage is prohibited,” though she declined
to comment on this case.
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In a 1993 ruling, the Ninth Circuit Court of Appeals declined to follow
EEOC guidance interpreting Title VII to require an employer to justify the
need for any English-only rule. The court ruled that it was not national
origin discrimination for an employer to require bilingual workers to
follow an English-only policy – even absent a sufficient business need for
it – because the policy did not deprive them of the privilege available to
other workers to speak at work. Title VII “does not protect the ability of
workers to express their cultural heritage in the workplace,” said the
court. A worker in private employment does not have an absolute right “to
speak in the language of their choice.”

The workers in the pending Albertsons action appear to be bilingual,
presenting a legal challenge for the EEOC, even if the agency can show
Albertsons had an English-only policy.

Unlike Title VII, California’s Fair Employment and Housing Act expressly
prohibits employers from adopting or enforcing a policy that “limits or
prohibits the use of any language” at work unless the policy is justified
by business need and employees are notified when and how they must comply
with it and the consequences for violating it.

In a 2011 unpublished ruling, the California court of appeal in Orange
County concluded that an employer did not adopt a general “policy”
prohibited by the FEHA when the employer barred specific bilingual
employees from speaking their native language at work after those employees
had been found to have used their native language to demean co-workers. The
court added that, even if such a targeted prohibition was a “policy” under
the law, it was justified by business necessity because it applied only to
those who had used their native language to offend other employees.

Three years later, Fresno federal judge Lawrence O’Neill ruled against
bilingual Hispanic employees who challenged an English-only policy under
Title VII. Judge O’Neill found that the complaining employees could not
show they were treated differently from a bilingual employee who also spoke
Swedish or that they had been disciplined for speaking Spanish at work. The
judge declined to decide whether the company’s policy violated California’s
FEHA because questions of “when an employer is deemed to have adopted or
enforced a policy that restricts or prohibits the use of a language in the
workplace and when such a language is justified by a business necessity . .
. are novel issues of California law” that needed to be resolved in state,
not federal, court.

No matter how the Albertsons case is resolved, an employer should adopt any
English-only policy only narrowly and only with a solid business
justification, such as directing it to those found to have used their
fluency in a foreign language to abuse co-workers who do not speak it.

Dan Eaton is a partner with the San Diego law firm of Seltzer Caplan
McMahon Vitek where his practice focuses on defending and advising
employers. He also is an instructor at the San Diego State University
Fowler College of Business where he teaches classes in business ethics and
employment law. He may be reached at eaton at scmv.com. His Twitter handle is
@DanEatonlaw <https://twitter.com/daneaton>.

-- <?subject=Don't adopt English-only workplace policy without clear
business need - The San Diego
Union-Tribune&body=http%3A%2F%2Fwww.sandiegouniontribune.com%2Fbusiness%2Feconomy%2Fsd-fi-eaton-20180528-story.html%23share%3Demail~story>
=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+

 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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